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W. C. LITTLE & CO, Law Potlbhrm 



bt w. c. little a CO 




FMpliT. Acaido 

People T. AdiogiM 

People T. Austin 

People ez nl. UeAerT. Baker. . 

People T. Baker. ,. 

People T. Baldwin 

Matter of Baldwin. 

People T. Bock 

Peo. ezrel.BoettcherT.Boettcher I 

People T. Brennan. 

People T. Bromwich I 

People T. Brown etal 

People T. Chiaro. 1 

People V. Coco ! 

People *. Cole 1 

People T. Collier, Impld : 

People T.Comlnaky ' 

People T, Conrow 1 

People T. Cuatt I 

People T. Darragh, ! 

People V, Dillon. '. 

People Y. Taber. 

Peo. ex reL Isaacson t, TallfKi, 

"Warden ! 

People T, Fenan 

People T. Frledmaa 

People V, Ford. ! 

People T. Puchi. I 

People T. Fnrinic 

People T. Oarlord 

Pe(^T. GUgCOl.. 

Peo. ex rel Peny t. Gillette. . . . 
People ei leL Peny v. GiUett*.. I 

People T. Oiddoet J 

People V. Green i 

People T. Qaile i 

Peoples. Guile jj 

People T. Harper 

People t. Hemnaus 1 

People V. Jones i 

People V. Katzenstetn 2 

Hatter of Elatskle 4 

People V. Eohn 1 

People T. Lan; a 

People T.Lee 8 

People V. Leonardo. 1 

People?. Lewis 4 

People T. Lumiden. S 

People V. Lumsden 4 

People T. Vackentk 1 

Poople V. UcLaughlln i 

People T. Madai 4 

Peoplev. Head '. 1 

People ez rel. Bnright t. Meyers S 

People T. Honat 8 

People T. Hoore < 

Peoplev. HorrftU 1 

People T. Nesce 4 

People ex rel. Scbnelder t. 
N. Y.C.4H.R.RR.CO... 4. 

People T. Payne et al 9 

People ex rel. Esplnosav, Perea. 



PMt^T.PUUlpa B44 

People ▼. PlMno. 460 

People ▼. Heed Hi 

Mfttter of Rockmon 18 

Peopler. RoMnbelDMr 869 

People T. Scbemo 18 

People T. Smith U 

Peoplev. TOlmu SS 

People ez rel. Stabile t. Weiden tt 

Peopler. Welx I17» 

Peoplav. Wood 4S6 

Peopler. ZerUlo 8tt 



m onKioHs IN Tma voLncE. 


AllM T. Soe^a, 170 N. T. M. cm 
Aibtatiod* r. Stat^ «7 Ind. 
2«T 6M 

BMdo T. PaopU, 41 N. T. e«S. T« 
B*U T. U. a, 140 U. B. 118. 404 
Buefitld T. SUte, 14 Altu OOa. 114 
Bftmnm t. BUta, 16 Ohio 717. 812 
Bennet t. L. la. R. R. Co., 181 

N. T. 4SI 488 

BlrdnU t. CUrk, 73 N. T. 78. 450 
Bloom T. Blcharda, 2 Ohio St. 

887 S6B 

BiDoks T. Bocheator B.J. Co., 

156 N. T. 244 SS8 

BkMom T. BuTctt, 87 N. T. 

4S4 167 

Bruuigui T. Feopio, 8 Utah 

488 103 

Brooknuui y. Hunill, 43 N. Y. 

554 218 

Brooks T. Huriaon, 91 N. T. 

8fl 638 

Brooks T. RodiMter By. Co., 

160 N. T. 244 838 

Bml T. PMple, 78 H. T. 500. . . 271 

CaMemI t. People. 18 N. Y. 

188 104,442 

Cweoiil T. Feoph, 10 N. Y. 

Csthoart t. Tin Dapt, 80 K. 

Y. 62» 44< 

C»t7 of New Yoric t. met, 

198 N. Y. 124 4M 

Oobm Aim. r. The Hsror, 118 

N. Y. 632 488 

Cohan t. People, 6 Pukert 

Crim. K. 880 Ul 

ConnMlnun t. Hltchoodc, 142 

U. S. 547 268 

Com. Y. PhllUpe, 11 FIxk 28.. 488 
Comm'a of Exdaa ▼. Seokridler, 

85 N. Y. 154 460 

Commoawealtlt t. Cook, Berg. 

A Hswlo, 677 67 

Commonweelth v. Qoddsrd, IS 

Heto. 466 39S 

Commonweelth t. Laplumi, 160 

Hue. 480 116 

Commonwealth ▼. Peten, 63 

Met*. 887 3W 

Oroeby t. People, 137 DL 86 . . 404 
Crow T. SUte, Tex. 334 .... 608 

Deny t. People, 10 N. Y. 120. 204 
DeTldflbnrgh t. Eniekerbodnr 

Life In*. Co., 90 N. Y. 62S.. 104 
BsTii T. Uayor of New York, 

14 N. Y. 600 4H 

Dswion T. People, 26 N. Y. 


, 108 




D. L. * W. R. R. Co. ▼. City of 

Buffalo, 1S8 N. T. 868 4B3 

Dent Y. Wett Virginia, 12» U. 

8. 114 3M 

Do7le T. SUte, 17 Ohio 288.. 103 

Duffy T. People, 6 Hill 76 ... . Si 

Ex parte Davia, 48 Tex. Cr. R. 

644 60 

Ex parte Hoffatot, 180 Fed. 

Rep. 240 60e 

Ex parte Reggel, 114 U. S. 648. 000 

Fisher t. Fisher, 189 N. T. 

604 168 

Fisher v. SUU, 40 N. J. Law 

ie« 190 

Fitzgerrold t. People, 37 N. Y. 

413 2«3 

Fletcher T. SUte, 12 Ark. 

160 509 

Foote T. Fire Dept., 6 Hill 69. 


Franlc v. Village of Warsaw, 

198 N. Y. 403 403 

Gladden v. State 18 FU. 568. 103 
Goettiog V. Normofle, 101 N. Y. 

371 18 

Grant t. People, 4 Park Cr. 

Hep. 027 06 

Griffiths T. MetropoUtan, St. 

Ry. Co., 171 N. Y. 106 .... 168 
Grossman r. Oakland, 30 Or. 

478 BOO 

Hamilton T. Eno, 81 N. Y. 

116 033 

Hankiua t. Mayor, 64 N. Y. 

18 196 

Hans Nielson, Petitioner, 131 

U. S 60 

Hawker v. People, 75 N. Y. 

Health Dept. r. Trinity, 145 
N. Y. 32 492 

Heckmann t. Pinkney, 81 N. Y. 
21 196 

Heeg T. Licht, 80 N. Y. S7B . . 454 

Hewitt r. Hewburger, 141 N. Y. 
538 010 

Hinnuu t. Clark, Ol Misc. 202. 460 

In re. Gilbert E. R. R. Co., 
70 N. Y. 361 403 

In re People r. Eberspacher, 
70 Hun 410 395 

Irrine y. Wood, 61 N. Y. 224. 406 

Jackaon v. SUte, 91 Wis. 203. 01 
Jackson t. SUU, 94 AU. 86. 464 
Jeff T. SUte, 37 Misc. 321 .... 464 
Johnson T. City of New York, 

109 App. DiT. 886; revd. 

186 N. Y. 139 270 

Johnson V. SUU, 66 Ind. 804. IBO 

King Y. People, Hun 207. 67 
Kramrath Y. City of Albany, 

127 N. Y. 576 450 

Kranskopf y. Tallman, 38 App. 

DiY. 270 518 

Kring Y. Miasouri, 107 U. 8. 

281 422 

Lererj y. Hannigan, 20 J. A 8. 

463 496 

Livingston y. Harris, 11 Wend. 

320 106 

McCarg v. Burr, 186 N. Y. 

467 195 

McCamey ▼. People, 83 N. Y. 

40B 181 

Mahala v. The SUte, 10 Yerg 

632 67 

MatUr of Attorney General, 21 

Miso. Rep, 101 257 



Ifatter of lUJdwin, 24 Crim. 

Rep. 137 4 

Hatter of Blom, 9 Misc. Rep. 

571 a 

l&tter of Pack v. Cargill, 1«7 
N. Y. 381 3 

U«tter of Emignuit Bank, 7fi 
N. T. 388 i 

Hitter of Foster, 139 App. DiT. 

Matter of HoDtgomery, 126 

App. DiT. 72 54, 289, 347 

Uesnier t. People, 45 N. Y. 

1 193, 404 

Ueyer t. Malcolm, « Hill 

2B2 4S4 

PMple V. BUtoi, lit N. Y. 


People T. Bonier, 179 N. Y. 

316; 18 N. T. Crim. 516 .. 3 
People V. Bonlfado, 190 N. Y. 

160; 21 N. Y. Crim. 122 .... 
People T. Bork, W N. Y. 100; 

2 N. Y. Crim. 177 1 

Potter T. Browne, 197 N. Y. 

ess 1 

People T. Burleigh, 1 K. Y. 

Cr. Rep. 622 

People T. Callahan, 89 Hun 



SUte, 61 Muc 


'. State, 43 Fla. 500 . 




People 7. Beatty, 30 N. Y. 476. 306 
People fx reL Baker t. Beatty, 

39 Hun 476 80 

People V. BiHcrt, 71 App. Div. 

118; 172 N. Y. 643 64 

People V. Blake, 121 App. DIt. 

013; 193 N. Y. 616. 107-! 

Nelson t. State Board of Health, 
108 Ky. 760 I 

Nichols V. Kingdom Iron Ore 
Co^ 66 N. Y. 618 467 

Noakea V. People, 26 N. Y. 
880 180 

People T. Acritelli, 22 N. Y. 

Crim. 112 ; 

People T. Adama, 176 N. Y. 

351 I 

People T. Adier, 140 N. Y. 330. 399 
People T. Akutt, 117 App. Div. 

646, affd. 189 N. Y. 617 

People T. Auntln, 40 Hun 396. IBS 
People T. Barrett, 2 Caince 

. 296 

People V. Carter, 88 Hun 304. 304 
People V. CaRcone, 186 N. Y. 317 ; 
20 N. Y. Crim. 176 -.137, 

337, 43S-46e 

People T. Clgnarale, 110 N. Y. 


. 396 

Peo. ex rel. Rubs t. City of 

Brooklyn, 60 N. Y. 606 196 

People T. Coney Island Jockey 

Club, S4 Crim. Rep. 622 469 

People T. Conrny, 97 N. Y. 62. 464 
People T. Constaotino, 1S3 N. Y. 

24; 12 N. Y. Crim. 339 411 

People ex rel. Dunti v. Coon, 

67 Hun 623 S5 

People T. Corey, 167 N. Y. 

332 338 

Peo. ex rel. Hc^eman t. Corri- 

gan, 196 N. Y. 1; 23 N. Y. 

Crim. 242 177 

Peo. ex rel. Jerome t. Court of 

SesaioDH, 112 App. Div. 424; 

186 N. Y. 604 64 

Pierce t. Creooy, 210 U. 

People T. CrouM, 86 App. Div. 

. 601 



People ax rd. Pruik r. Darla, 

SO App. OiT. 448 

People T. Do Oarmo, 170 N. T. 

130; IB N. T. Crini. 430 ... 1 
People y. Del Tenno, 102 N. Y. 

470 167. 4 

People ex lel. Demoe t. Demoe, 

lis App. DlT. 410 IB, S 

People «x reL FMney t, Der- 

■liem, 7S App. DIt. 680 

People T. De Wolf, 133 App. 

Kt. 880 

People r. Dillon, lOT H. T. 

People ▼. Dnnuir, 106 N. Y. 

People ex x> 

Dannliig, 113 App. Dir. 3S. I 
People T. ElUott, 163 N. Y. 

Enoch, 13 Wend. 


160 1 

People T. Fkber, IW N. Y. 266; 

2S Crim. 87 ' 

People T. Femtre, 190 N. T. 

414; 26 N. Y. Crim. 1 

People ▼. Fielding, 168 N. T. 


People T. Fielding, 168 N. Y. 

462 a 

People V. Flenlf, 110 N. Y. 

Supp. IH 1 

People ez rel. Tejlor v. Forbee, 

143 N. Y. 210 86B, 3 

People ex reL Abranu t. Fox, 

77 App. Dir. 246 6 

People ex reL Bolierff r. Froet, 

18B N. Y. 110; 24 N. Y. 

Crim. 888 3 

People ex rel. Sdwrff r. Froet, 

108 N. Y. 110 i 24 N. Y. 

Crim. 3B8 

People ex reL Scharff t. Froet, 

IM N. Y. llOj 24 N. T. 

Crim. 2B8 M 

People T. Fnrkmg, 187 H. Y. 

108 81S 

People ex rel. Flood t. Oerdiner, 

167 N. Y. 620 290 

People T. Oerdner, 144 N. Y. 

119; 9 N. Y. Crim. 404 

48, 304, 474 

People V. Qtjtt, IM N. Y. 

M 209, 342 

People T. Qibbe, 03 N. Y. 471. 308 
People y. Giblin, 116 N. Y. 

198 264, 271 

People T. Oibeon, 181 M. Y. 227 ; 

22 N. Y. Crim. 188 113 

People T, Gilbert, 199 N. Y. 10; 

24 N. Y. Crim. 480 188, 330 

People V. Gilei, 162 N. Y. 141. 306 
People ▼. Gill, 6 T. k C 308. . 394 
People ex rel. Perry ». Gillette 

200 N. Y. 276 ; 86 N. Y. Crim. 

308 406 

People *. Giro, 197 N. Y. 168; 

24 N. T. Crim. 266 39, 430 

People T. Glen, 173 M. Y. 306 

84, 279, 460 

Ex parte Glenn, 111 Fed. Rep. 

857 66 

People T. Goodwin, 18 Johu, 

187 63 

People T. Qovenule, 198 N. Y. 

681 322, 438 

People T. OieenwKll, 106 N. Y. 

296 16B 

People T. Grimaliftw, 33 Hun, 

605 34 

People T. Guenther, 24 Crim. 

133 469 

People T. Guidld, 100 N. Y. 

603 309 

People T. InfleU, 1 N. Y. Crim. 

146 289 



F«opl« ox tti. Hftdtley r. Kellr. 

M N. Y. T4 378 

People T. Humoii, 49 Hnn, 

568 BM 

Peoph T. Hktm, ee HIM. SM. (K» 
People ex reL Schneider ▼. 

H«Tea, 106 App. DiT. 6.... 609 
People T. HeUTT, 77 <U. 44S. . ISO 
Peopk ▼. Hoeh, 160 N. Y. 291, 

303; II H. Y. Crim. 488 .... 100 
People ▼. Hnggine, 110 App. 

Dt*. «13 442 

PM^Ie T. HnM«, 187 N. Y. 97. 287 
PMple T. Hoeh, 160 N. Y. 201; 

n K. Y. Crim. 4S8 »S 

People T. Horcr, 92 N. Y. SH. M 
People ex reL Corkiu t. Hyett, 

172 K. Y. 170; 188 U. " 

. 600 

People T. Jaduu, 4 N. Y. Crim. 

People T. Jaffe, 186 H. Y. 497. 472 
People T. Jkmes, 11 App. DIt. 

Pe<^ T. Jewitt, 00 Hub 660. SO 
PMple V. JohnMB, 187 N. Y. 

People T. Joitee, 48 Hieh. 664. 68 
People ex reL Hnmj t. Jiu- 

Uoec, 74 K. T. 406 83 

People V. Kuie, I«0 N. Y. 

380 296 

People T. Kemmler, 110 N. Y. 

680 98 

PeopU T. Kemmkr, 110 N. Y. 

680 169 

Pwiple V. Eenncidr, 104 N. Y. 

4S« 887 

People T. King, 2 Oftiues. 98. . lOS 
People T. Koemer, 164 N. Y. 

S60; 12 N. Y. Crim, 603 ... lOB 
People r. Kremer, 33 Hlao. Kap. 

People T. Lumooe, 137 N. Y. 

617 2 

Peopl* r. I^neh. 11 Johiu, 

649 4 

People T. HeCartby, 46 How. 

Pr. 87 

People T. UeCBT^, 110 N. Y. 


. 200 

People V. UaCio^uf, 6 Pkifca 
Cr. Hep. 67 181 

People T. HeGMia, 43 Hnn, 
66 80, 394 

People T, IfaKanet 80 Hnn, 

. 138 

People T. UeKuie, 143 N. Y. 

466 39 

People V. lleKeoB, SI Hnn, 

440 271 

People T. UoLBn^Us, 67 App. 

DiT. 464 1B2, 442 

People T. IhAhkm, 04 CM. 

Beetle ex reL OHefU^ t. 

VMjta, f» How. Pt. 277 ... 4 
People T. UeUim. 133 N. Y. 

214 8 

People T. Uillcr. SO Wee. 


People r. Hillir, 124 N. Y. 

Snpp. 168 SOfl 

People T. BUne, 01 App. IHt. 

831; 178 N. Y. 274; 18 N. Y. 

Crim. 269 463 

People T. Uolincux, 27 Mlao. 

flO 458 

People V. HoUneux, 168 N. Y. 

204 387 

People T. Uona, 123 H. Y. 

264 474 

People T. Uon^ 19tt N. Y. 

306 438 

People ex reL Perldn* t. Ifoea, 

187 N. Y. 410 616 




Pwple ▼. Unlford, 120 H. Y. 

Supp. 6B0, 140 App. DiT. T16. 354 
People T. Hflod, 20 R. I. 

632 3«2 

People T. Nino, 149 N. Y. 317 ; 

12 N. Y. Crim. 228 99 

People es rel. Lewieobii t. 

O'Brien, 176 N. Y. 263 3T5 

People T. OiHhtd, 20 Misc. 163. 107 
People V. Olcott, 2 Johns Ch. 

301 52 

People ex reL Lange v. Palm- 

itter, N. y. Uw Jour 493 

People V. Petrea, 92 N. Y. 128. 201 
People T. Pieraon, 176 N. Y. 

201 360. 363 

People V. PilUon. TB Hun 74.. filS 
People V. Place, 167 N. Y. 684. 137 
Peo. ex nl. HamiltOD v. Poliee 

Comr., 100 App. DiT. 483 ... 601 
People ex rel. Ferguson y. Rear- 
don, 197 N. Y. 236 877 

People T. Richmond, 6 N. Y. 

Crim. 97 468 

People T. Rogers, 192 N. ¥. 

331; 22 N. Y. Crim. 376 .... 117 
People r. Rulloff, 3 Park Cr. 

Rep. 126 69 

People T. Rutherford, 47 App. 

Dlv. 209 386 

People T. Sands, 1 Johns 78. 464 
People T. SeasDell, 37 Misc. 

Bep. 346 292 

People T. Scberno, 140 App. 

Div. 96 3S6 

People T. Schleiman. 197 N. Y. 

393 314 

People *■ SchlesMl, 127 App. 

DiT. 612 206 

People T. Schuyler, 106 N. Y. 

298 168 

People r. Schwartz, 32 Cal. 

People T. Serton, 187 N. Y. 

495 469 

People T. Sharp, 107 N. Y. 427. 373 
People T. ShaTer, 37 App. Div. 

81 442 

People T. Shaw, 63 N. Y. 36 . . 109 
People T. Sheldon, 166 N. Y. 

268 90 

People T. Shotwell, 27 Cal. 

304 297 

People T. Sliney, 137 N. Y. 

570 169 

People T. Smith, 86 Hun 486 . . 441 
People T. Spier, 120 App. Div. 

786 192 

People y. Stacy, 119 App. Div. 

743; 1B2 N. Y. 677 271 

People T. SUrk, 17 N. Y. St. 

Repr. 237 196 

People T. Steinhardt, 47 Misc. 

Rep. 262 18fl, 289, 468 

People T. Stout, 3 Parker's 

Crim. Rep. 670 169 

People T. SulliTan, 173 N. Y. 

122 271. 464 

People T. Taylor, 138 N. Y. 

398 98 

People r. Teal, 60 Misc. 617. 186 
People V. Thompson, 198 N. Y. 

396 269 

People r. Thompson, 28 Cal. 

214 297 

People T. Thorn, 166 N. Y. 286. 466 
People V. Truck, 170 N. Y. 203; 

16 N. Y. Grim. 342 99 

Peo. ex rel. Sandman t. Tuthill, 

79 App. DiT. 24 600 

Peo. ex rel. Smith t. Van De 

Carr, 86 App. Div. 8; 17 N. Y. 

Crim. 456 86 

People T. Wandell, 21 Hun 616. 396 
People T. Washer, 196 N. Y. 



Paopk T. Wcfaoter, 76 Hna 

«78 395 

P«opl« T. WeitiBriiD«r, IIT App. 

Div. e03 390 

PMpt« T. WIiit«Bi>n, 72 App. 

Mv. 90 7 

People V. Wilson, I SI H. T. 

400 2M 

People r. Winnew, 3 N. Y. 

Crim. Rep. BO 442 

FMple a rel. livtngaton t. 

Wymtt. 186 N. Y. 383 808 

People V. Youngs, ISl N. T. 

210; II N. Y. Crim. S4e ... 07 
People V. Zabor, 44 Miec Sep. 

MM 500 

Phelps ▼. UkTOT, 112 N. Y. 

218 460 

Pienon t. People, 70 H. Y. 

424 806 

Powel T. Tuttk, 3 N. Y. SOfl. 480 

Remsen t. People, 43 N. T. 6. S30 
Bideer t. HeDonald, 80 App- 

DiT. 300 464 

Robert! v. Beill^, 116 U. 8. 

80 600 

Robinson v. Conunonwealtli, 8S 

Ky. 3S6 66 

Ruloff V. People, 48 N. Y. 213. 411 

Shepherd T. People, 19 N. Y. 

63T IOC 

Sherwin t. People, 100 N. Y. 

361 610 

Simon t. State, 18 So. Rep. 

732 02 

Smith T. Luie, 24 Hun 032. 862 
SUte T. BoTdeaux, 93 N. C. 

660 102 

State T. Bunrell, 40 Neb. 16B. 368 
State V. Bydee, 17 Kansas 

L8BS CITED. jjjj 

StaU T. Cooler, 80 a C. 106. 423 
Stat* T. Bdwards, 13 S. C. 30. 88 
SUte V. Epbnim, 2 Der. ft Bat. 

162 67 

State T. Oravett. 68 Ohio 

289 363 

State T. Hawkins, 10 Ark. 71. 103 
BUto r. Hawkins, 10 Ark. 71. 104 
StaU r. Herring, 70 N. Y. L. 

34 383 

SUU T. Levy, 110 Ho. 434. 809 
SUte T. Liffring, 61 Ohio SO. 363 
SUte T. Marble, 72 Ohio 81. 363 
SUte T. UcKnight, 131 N. Y. 

717 863 

BteU T. Uylod, 20 R. I. 632. 363 
SUte T. Harble, 72 Ohio 21. 368 
SUU V. Richardson, 47 S. C. 

166 88 

SUte ▼. Sow, 32 a C. 401... 68 
SUU T. Bymon^, 36 Uaine 128. 103 
SUte y. Walker, 22 Ltt. Ann. 

426 609 

SUte ▼. Watson, 41 La. Ann. 

608 600 

SUte T. Welch, 66 Vt 60 ... 424 
SUte r. Yonng, 46 N. T. 266. 211 
SwiH V. Lehigb Valley R. R. 

Co., 61 App. DiT. 286 00 

Territory T. Ponlier, 8 Uont. 

146 208 

ThompsMi V. Missouri, 171 

U. a 423 

ThompMm v. UUb, 170 U. a 

843 421 

U. S. T. Pwlro Gilbert, 2 Snmn. 

R. 60 67 

D. B. V. R^nolds, 98 U. S. 146. 864 

Van Orden t. Robinson, 46 Hnn 




Wkllcer r. B«ft, 107 App. Div. 

304 D33 

Wklla r. St«t«, 90 Ala. 018. 404 
Welb V. Cit7 of BrooklTii, » 

A]>p. DiT. 01 404 

Wilcox r. Rlelmuiiid Light & 
" Co, 128 N. T. Snpp. 


SecUon SO 411 

BeeUou 181 13« 

SeoUon 278 7« 

Section ZSS 02 

eeotiou S30 114 

eaetion 616 snb. 3 SOB 

Scctton 088 72 

SecUon BOO 307 

8«etion 080 403 

Bection 962 p. 289 

Section 1630 463 


Seedon 240 403 

Section 280 

Section 201 218 

Section 850 40,304 

Section 861 49 

Section 867 40, 304 

Section 880 SOS 

Section 1044 

Section lOfiE 272 

Section 1298 

Section 1290 

Section 1208 6 

Section 1298 442 

Section 1299 442 

Swtion 1020 33 

Section 1S94 444 

Section E120 43« 



Section 4 442 

Section M 83 

Section 142 2S0 

SwHon 144 !0T 

Section 161 IS4 

SeeUon 222 442 

Section 224 102 

SecUon 262 280,204 




SeetloD Ses 

2M, 289 

Bcetiou 204 

204, 289 

Section 278 

284, 296 

Seetion 279 

284, 2BS 

Section 313 

279, 288 

Section 321 


Section 827 




Section 348 HW 

Section 889 186 

SeeUon 302 2 

Section 411 4W 

Section 428 62 

Section 407 298 

Section 480 404 

Beetion S27 272 

Section 7S0 396 

SeotiOB 766 800 





JqiW 10, 1910. 


(lift Am. DtT. 404.) 

(D Chhibaz Assault— Giakd Jubt — BnsnoB— AoB tw Iivaiit 

Wmntsa — | 892 Cran Csoc. Flo. — Pkku Law, | HtlS. 

In the absence of sar eTfdesoe on tbe subject, It wlU be 

presumed that tbe gnmd Inrr made proper Inveatlgatlon as to 

qnaUflcsUon of wltnea onl7 lour rears old vho had been crlmt 

nall7 assaulted. 

'Where, open the trial of one charged with criminal assanlt 
upon a child toor rears old, tbe child Is the only one to Identify 
the defendant as the person who enticed her Into the shed, and an- 
other witness who testified to harlng seen him with the child, 
identifies him merely by general appearance, not barliig seen his 
face, and both declare that be was wearing a straw bat, and tour 
other witnesses called by defendant testified that they saw him 
about tbe place at the time of the assanlt and that he was wearing 
a derby, and there is no pretense that he conld have changed his 
bat. there is not satisfactory corroboration of tbe statement of 
the child and a Judgment of oonrlction ihould be rereraed. 

• See Note, M N. T. Crlm. 7. 



Appeal bj the defendant, WiUi&m Baldwin, from a judg- 
ment of the Connty Court of Saratoga county, rendered against 
the defendant on the 26th day of Norember, 1909, convicting 
bim of the crime of assaolt with intent to commit rape. 

Robert W. Fisher and WUUam W. Norton, for the appellant 

William T. Moore, Diatrid Attorney, for the respondent 

Houghton, J. ; 

The defendant was convicted of criminal assault upon a 
child four years of age. On the back of the indictment the 
name of the child appeared ae one of the witnesaes examined 
before the grand jury. On arraignment the defendant pleaded 
not guilty, end moved to dismiss the indictment on the ground 
that the grand jnry had no right in finding an indictment to 
receive either the child's testimony or statement. There was 
no proof as to whether or not she was actually sworn in giving 
her testimony before the grand jury, or what if any ex- 
amination was made to ascertain whether she possessed stiffi- 
cient intelligence to justify the taking of her statement 

Section 392 of the Code of Criminal Procedure provides that 
whenever in any criminal proceedings a child actually or ap- 
parently under the age of twelve years offered as a witness does 
not in the opinion of the court or magistrate understand the 
nature of an oath, the evidence of such child may be received 
though not given under oath, if, in the opinion of the court or 
magistrate, such child is possessed of sufficient intelligenca to 
justify the reception of the evidence; but further provides that 
no person shall be held or convicted of an offense upon such 
testimony unsupported by other evidence. 

In his motion the learned attorney for the appellant eon- 
ceded that it was within the discretion of a court or magistrate 
to receive the statement of the child, but contended that the 



law bad not made her statemeiit competent as evidence before t 
grand jury. Tlie precise question was passed on in People v. 
Sexton (187 N. T. 495), 21 N. T. Crim. 9, and it was held 
that a grand jniy was such a distinct body and so clothed with 
anthority to conduct the examination of witnesses that it had 
the power to determine for itself the qualification of witnesses 
of t^der jreara so long as there was due obeerrance of the statu- 
tory safeguards enjoined upon other tribunals under similar 
circumstances ; and in efFect that a proceeding before a grand 
jury was such a criminal proceeding as made the provisicois of 
section 392 of the Code of Criminal Procedure applicable. 
It is true that in that case there was an affidavit of the district 
attorney that the grand jury made investigation as to the intelli- 
gence and qualification of the child to give evidence, while in 
the present case no such affidavit appears. We think, in the 
absence of any evidence upon the subject, it must be presumed 
that the grand jury did make proper investigation before the 
child was permitted to make her statement, and that, therefore, 
the defendant's motion was properly denied. 

But the evidence adduced against the defendant upon the 
trial waa of so unsatisfactory a character that we feel a new 
trial should be granted to him. The child was properly per- 
mitted to make her statement She was less than five years 
old when this was done, however, and her evidence was necea- 
sarily colored by talks which she had bad with her elders. 
Section 392 of the Code of Criminal Procedure provides that 
no person shall be convicted of an ofFense upon the testimony 
of a child of such immature years unsupported by other evi- 
dence. The law, therefore, colled for especial corroboration of 
her testimony. The defendant on the trial did not controvert 
the fact that an attempted criminal assault had been committed, 
hut he maintained that he was not the man who committed it. 
The scene of the assault was a horseshed connected with a hotel, 
and near passers-by upon the street, and in a eomparativdy 



thickly populated nei^borhood. The child was the only one 
who identified the defendant aa the man who enticed her into 
the shed. One witness who claims to have seen him with the 
child was unable to identify him, except as to general appear- 
ance, not having seen his face. Both the child and this witness 
say that the man who committed the assault wore a straw hat. 
The defendant called two of the witnesses who had been sworn 
in behalf of the People and who had testified that they had 
seen him in the vicinity about the time of the allc^ied assault, 
and they testified at the time he was wearing a black derby hat. 
He also called two other witnesses who testified to the same 
thing. There is no pretense that he could have changed hats 
during the time in controversy, and it is quite apparent that 
identification of the man who committed the assault depended 
largely upon the kind of hat he wore. The testimony casts 
very serious doubt upon the fact as to whether the defendant 
was the man who committed the offense. The mere fact that 
a man is charged with so revolting a crime subjects him to im- 
mediate abhorrence and detestation, and courts should very 
carefully guard his ri^ts. 

Our conclusion is that justice requires that the judgmoit of 
conviction be reversed and a new trial granted. 

All concurred. 

Judgment of convictions reversed and new trial granted. 



June 8, 1010. 


(188 App. DlT. 807.) 

1 — OnjLQnne Honr on 

In order to eonTlct a detendant of lareeiiT under tubdlTlfllon 1 
ol section 12B0 of the Penal Law In obtaining niane7 on a check 
by falae and fraudalent pretenses m reapects Its validity. It must 
be shown that the defendant obtained the money from the person 
whom he Induced to cash the check with an Intent to deprive 
him thereof or to appropriate the same to hli own use, or to that 
of another, and that he obtained It " by color or aid of falae or 
traudalent representation or pretense," or by the aid of the cbeck, 
and that the check was a " false token or writing." 

<S.) 8ufK— Pkkal Code Seo. 1293 — Fkauduukt Dultt — EmwKOE 
NfCBseAKT — Wium. Ihtent must be Showit. 
In order to bring the defendant wtthln the provisions of section 
1293 of the Penal Law, making It theft to obtain money by a 
trandnlent draft. It Is necessary to show that be "wUlfally with 
Intent to defraud by color or aid " of the check obtained money 
from the person whom he Induced to cash It knowing " that the 
drawer or maker " of the check was " not entitled to draw on the 
drawee for the sum specified therein." 

The mere presentment of a check drawn by another does not 
oonstltnte a representation that the drawer has funds to his credit 
In the hank on which It Is drawn. 


Brldence that the person who cashed the check received It from 
the bank with a writing attached stating that It was returned 
because the Indonement waa a forgery Is not competent to show 



(G.) Sake. 

MoreoTsr, when tba only Indoraeinuit on the check warn Out 
of tiiQ parM and the defendant did not Indone, proot tbet tbe 
paree'i name mm forged la not evldenca of a galltj knowledge 
on Uie port ol the defendant 

Appsai, by the defendant, Gennaro Ghi^eri, from a jnd^ 
meut of conviction rendered against him in the Coort of Spe- 
cial Sesaiona of the First Diviaion of the city of New York 
on the 10th day of November, 1909, on an information charg- 
ing him with petit larceny in having procand a check to be 
cashed on false pretenses. 

Morris Jahlow {Louis B. WUliams with him on the brief], 
for the appellant. 

Robert 8. Johnstone, for the respondent 

liAuoHLnr, J.: 

Tbe judgment recites that the defendant was convicted of a 
violation of the provisions of section 1298 of the Penal Law. 
That section merely provides that every larceny other than 
grand larceny in the first and second degrees is petit larceny. 
The acts with which the defendant is charged, set forth in the 
three comits of the information, might constitute a violation 
of the provisions of section 1290, subdivision 1, of the Penal 
Law, which correspond with the proviaions of section 528, sub- 
division 1, of the Penal Code, or might be a violation of tbe 
provisions of section 1293 of the Penal Law, which con«- 
spond with tbe provisions of section 529 of the Penal Coda 
The substance of the charge is that the defendant obtained 
from one Bruno the sum of eighteen dollars and seventy-three 
cents by false and fraudulent pretenses with respect to the 
validity of a check for that amount, which purported to have 
drawn by one Benedict Warner on the American Exchange 



National Bank to the order of Sperm Broa^ and whidi pur- 
ported to bare been indorsed hy the paTeea. 

In order to constitute a Tiolation of the provisiona of section 
1290, anbdivlBion 1, of the Penal Law, it was neoessary to 
show that the defendant obtained the money from Bmno with 
intent to deprive him thereof, or to appropriate the same to 
his own nse or to that of another, and that he obtained it " by 
color or aid of fraudulent or false representation or pretense," 
or by the aid of the check, and that the check was a " false 
token or writing;" and in order to constitute a violation of 
section 1293 of the Fenal Law it was incumbent upon the 
People to show that the defendant "willfully, with intent to 
defraud, by color or aid " of the check, obtained the money 
from Bruno knowing " that the drawer or maker " of the 
check was "not entitled to draw on the drawee for the smn 
specified therein." It is manifest, therefore, that it was neces- 
sary for the People to show either a false representation and 
criminal intent or knowledge on the part of the defendant that 
the check was invalid, or that the drawer or maker had not 
funds on deposit with the drawee suMcient to meet the same. 
This court held in People v. Whiteman (72 App. Div. 90) 
16 N. Y. CriuL HI, that the mere representation of the check 
of another by the defendant in payment of his hotel bill did 
not constitate a representation that the drawer of the check 
had funds to bis credit with the bank on which it was drawn, 
and did not constitute a violation of the provisions of section 
52S or section 529 of the Fenal Code, which have been re- 
spectively re-enacted without material change in section 1290 
and section 1293 of the Penal Law. In the case at bar the 
conviction has evidently been bad upon the theory that the in- 
dorsement of Sperra Bros, on the check was a forgery, but 
even this was not shown by the evidence. On the back of the 
check as introduced in evidence appears the following : " Sperra 
Bros. George N. Bruno Pay 19th Ward Bank or order 12th 



Ward Bank. Received paTment through New York Clearing 
House Endorsement guaranteed 19th Ward Bank." It thus 
appears that the check was not indorsed by the defendant. 
Bruno testified that he put the check in his hank and that it 
came back to him with a white piece of paper attached show- 
ing that it was returned by the American Exchange National 
Bank for the reason assigned, which was " Endorsement a 
forgery." This was not competent proof that any indorse- 
ment was a forgery, nor does it indicate which indorsement 
is claimed to have been a forgery. Bruno did not testify that 
he indorsed it and for aught that appears the claim with 
respect to the forgery may have had reference to the indorse- 
ment of his name on the check. But if it could be assumed 
that it had reference to the first indorsement and that the same 
was a forgery, still there is no evidence of guilty knowledge on 
the part of the defendant. It appears by the testimony of 
the cashier of the American Exchange National Bank that 
the drawer of the check had funds to his credit in the bank 
and the check was paid when presented and charged to his 
account, hut that the drawer subsequently returned the check 
to the bank and the hank collected the amount paid thereon 
through the hank from which it received it 

The defendant at the time in question-was in the employ of 
Bruno. Bruno testified that the defendant " came to the office 
one morning and said that he had a check, and his brother-in- 
law gave it to him; I saw it was indorsed by his brother-in- 
law Sperra, and I cashed it for him." This is the only evi- 
dence that the defendant made any representation with respect 
to the check. His only representation, therefore, was that he 
received it from his brother-in-law. The only evidence with 
respect to who his brother-in-law was is the testimony of Bruno 
that he saw that the check was indorsed by the defendant's 
brother-in-law. If so, that proves the truth of the representa- 
tion which defendant made. It may, however, be aaid that 



the witness meant not that the indorsement was gennine, bnt 
that it contained such an indorsement. U it may be assumed 
from this teetimonj that one of the Sperra Broe. was the de- 
fendant's brother-in-law, that fact alone is insnfBcient to show 
that he knew that the indorsement was not made by one 
authorized to indorse the check for Sperra Bros. It may be 
that by virtue of the copartnership authority, or an arrange- 
ment with the bank, all members of the firm were not author- 
ized to indorse cheeky and that the indorsement was r^arded 
as a forgery on this theory. The facts must be more satisfac- 
torily shown in a case involving individual liberty and repu- 
tation. It was not disproved that he received the check from 
his brothep-in-law as he stated, and this is an entire absence of 
competent evidence that the indorsement on the check when 
the defendant delivered it to Bruno was a forgery, or that he 
knew that it was a forgery. 

It follows, therefore, that the judgment of conviction should 
be reversed and a new trial granted. 

IhosahaUj F. J., McLArGHLUTj MiLUEB and Dowliito, 
JX, concurred. 

Judgment reversed and new trial ordered. Settle order on 


Th« giving of a ch«ck by a person upon a bank at wblcb he has no 
deposit or credit, unleu there Is a wtlful Intent to defraud, held not 
to be larcenr. People r. Cnrkendall, 3 N. T. Crlm. 312. 

When defendant, when check was negotiated by hitn, had good 
reason to believe, and did honestly believe, that he was entitled to 
draw the amount thereof, and that It would be paid In the naual 
course ol bnatness a conviction will not be sustained. State v. John- 
son, 77 Itinn. U7. 




Fsct tbat a cbeck It postdated held not to take It out of tbo 
statute. Barton t. Peopls, 85 IlL App. 67S. 

One who preeenta hla own dieck to a bank In wblok be haa an ac- 
count held not to be vlthln the BtaMachusetta Statute, since the act 
of preaentetlon Implies only a request to pay. Commonirealth t. 
Drew, IS Pick. 179. 

One who draws a check on a bank itbtn be has no funds to meet 
It la sutltr of a fraud on the person who parts with money on the 
faith thereof. SelUnc v. Clark. 18 HIsc 464. 


Tho passins of a cheek held not to be a roprcsentetion that the 
pwson pas^nc It has at the time mooey to the amount of the face of 
sncb check In the drawee bank, since be may bare authority from the 
bank to orerdraw. Reglna t. Basleton. L. R. 1 C C. lU. 

Since no mere words amount te a token, held that the drawing of 
a check on a bonk In which the drawer had no funds at the time the 
check was drawn, such act being a mere written promise or stst» 
ment. was not ■ cheat or fraud at common law. Commonwealth vs. 
Tarren. 6 Hsas. 12. Rex t. Lara, 2 Bast P. C 819. 


A Court of Bpeclal Sessions has jurisdiction el the crime of obtain- 
gin money under false pretences by means of a check. People t. Hug- 
gins, 110 App. DlT. 618, 20 N. T. Crlm. 367. 


Indictment for ebtelning goods under false pretenses, charging that 
defendant with Intent telonloualy to cheat and defraud, repreeented 
that a bank check dellrered by blm in payment of goods purchaaed 
purporting to hsTO been drawn by another person, was a good and 
genuine check, that be bad money on deposit, and It would be paid 
on preaentetlon, held soffleleuL Smith t. People, 47 N. Y. 303. 


The payment of a debt by a postdated Check, defendant stating at 
the time that be was a little short, had bought some property, and did 
not want It presented until the day of Ite date, and had some paper 
out of which he expected to get some money, held not larceny. 
People T. Cu^endall. 8 N. T. Crlm. 812. 



When defendsst pnrduMd books of the nhis of (600, gMag to 
tlLQ teller bli check on a bank In PemialTMila. dated on the Saj of 
the aale, Jnne 16tli, and pajKble Jnly tth, statins that he waa rather 
abort at the time and feared that there waa not enantfi money In the 
bank to par the check, when In tact be kejrt no aoconnt In the bank 
named, held that he was moperljr wnTltsd. Foota T. People, 17 
Hon. 21S. 

Not neoessarr to establish false r e presenta t ions that the proof 
should be direct, bat snch erldence must be tlTen and snch facts 
astabllahed aa taod lodUiDatelr and neceasarltr to show the existence 
of the frandntent intent People ▼. Plckner. 67 Hun. 418. 

Where defendant and a oompanlon called upon oomplalnant and 
ban^lned tor eoeda, and defendant'a companion, whom be represented 
to be the owner of two stores, went out to set nxmer. snd the latter 
retvmed with a check porportlni to be signed by a third partr, dated 
the next dar, and when attention was called to such fact, defendant'a 
companion remarked that It was too lato to so to the bank. It then 
being after banklns hours, so that the cheek waa recelred and the 
Soods dellrered, and It appearing that no snch person as the alleged 
drawer of the check had an account In the bank, and that there was no 
such person, held that the drenmstanees tmded to show a derloe to 
defraud, and that the fact that the check was postdated did not; 
under the drcumstances, make It a mere undertaking that the money 
would be In ttie bank at maturity. Leaser t. People, TS N. T. 78. 

Proof that a gneat at a hotol, under a flctitioaa sara^ tendered the 
check of a third person to Ito cashier and received the difference 
between Its face ralue and the amount of hla bill, and that the drawer 
had no account with the drawee of the check, held not to be snfflclent 
to sustain a conrlctlon. People v. Vhlteman, 72 App. DIt. M>, 16 
N. T. Crlm. «1. 

Where defendant obtained a check upon the promlae to dellter Im- 
mediately hla own check for the amount, but tailed to do so for several 
daya, when he made payment of a balance due by the delivery of his 
own check with a statement that aame waa good and that be had 
plenty of money in the bank, such atatementa being false, held that he 
waa properly convicted of obtaining money under false pretenses. 
People T. Hugglna, 110 App. DIt. 6U, » N. T. Crlm. UT. 

Proof that defendant made a check on his local bank payable to the 
order of the City Treasurer, that the lattor endorsed the check, and 



Hoompanled br the defendsnt, pr«Mnted It to his parfng toller in 
the dtjr ofBoe, obtolnlns tlieraon city moner wUcb waa In till Uwfnl 
powOMloB a> nxdi treasurer, gave tbe money to the defendant; that 
the check iraa nersr paid, that the defendant knew that he waa not 
entitled by his depoatt to draw a check for aoch as amouit and In- 
tended to defraud the dty thereby, held anfflclent, aemble, to anpport 
an Indictment for Inducing the treaanrer to part with the money 
on the talae representation Implied by the glrlns of the check that 
same was good. People t. Dilcher, 38 BUac W. 


Charge. A request to charge that the pretense must appear upon the 
Indictment to be auch as could not he guarded against by an exercise 
of common sagacity and prudence, held properly denied. Smith t. 
People, 47 N. T. 803. 

When on trial of an Indictment for glTlng a worthleaa check In 
payment tor goods. It Is shown that after the dlahonor of the check 
the Tcndor's agent went te Maine with the defendant and negotiated 
a transfer of real eetato in that sUte to secure the sum due, thus 
treating the transaction as a simple indebtedneas, and when euch 
agent la not produced by the complainant on the trial to rebut the 
claim of the defendant that presentation of said cheek was to be 
delayed, and when the trial Judge refuses to charge that the Jury 
may consider the conduct of the parties towards each other on the 
question of criminal Intent, a new trial should be granted In further- 
ance of Justice. People v. Upp, 111 App. OIt. 604. 


On appeal from a couTictlou under an indictment for grand larceny 
In the second degree, in obtaining money on a worthless check through 
lake repreaenUtiona, it appeared that testimony was given on the 
trial ahowlng that when the defendant was charged with drawing a 
check, purporting to be algned by a mythical person, he made no 
denial, held that the Jury had the right to find that auch waa the 
actual fact. People v. Pickney, 67 Uun 428. 



JniM 84, 1910. 

(1S» App. DIT. n.) 

Ai'luuiii — DiaaAMMxaT. 

An ftttomer dlibured tor embenllnc moncr noalTed tnm & 
client tor the purpose ol opening def&nlL 

Appuoatioh to disbar an attorney. 

John Neville Boyle, for the petitioner. 

Ljftnan Lewis Beitel, for the respondent 

Pbb Cobiah: 

The respondent was charged with having received from a 
client $128.27 to deposit as a condition of opening a defatilt 
in the Mnnicipal Court; that he failed to make such deposit, 
in consequence of which the defendant's ri^t to retry the case 
was lost, and that be converted the money to hia own use. The 
respondent's defense was that he received the $128.27 together 
with a fee of $15, from one Safford, a client ; that the said sum 
of $128.37 was given to a clerk in his employ with instructions 
to make the deposit; that the derk spent the money, but re- 
ported to the respondent that he had made the deposit, and 
that aubeequently the derk restored the money and it was 
repaid to the respondent's client. The case was referred to a 
referee, who, after taking all the testimony, has made his 
report anstaining the chai^;ee against the respondent. This 
report substantially convicts the respondent of perjury as well 

See Note. toL 24, ^ 2il. 



aa embezzlement of his client's money, and if it is Bostained by 
the evidence, requires that the respondent should be disbarred. 
Tbe clerk who was charged with having embezzled the monej 
was produced before the referee and moat emphatically denied 
the &ct that be had ever received the money from the respond- 
ent or that he had ever made restitution. The referee, in a 
very full report; states the grounds for believing the clerk and 
for not believing tbe respondent We have examined the testi- 
mony and entirely concur with the referee, and it is unneces* 
sary for us to add anything to bis report. The effort of the re- 
spondent to relieve bimseU from responsibility by charging 
tbe embezzlement ot the money to a clerk who bad left his em- 
ploy and whom the respondent supposed could not be pro- 
cured upon tbe hearing is of itself an offense which conclu- 
sively established that the respondent is not a proper person 
to continue to be a member of tbe bar. We are satisfied that 
the referee correctly determined the question submitted to him, 
and it follows that the applieati<m should be granted and the 
respondent disbarred. 

Present — Inobahah, F, J., Ladqhlik, Ciabxb, Scott 
and MiLLBB. JJ. 

Bespondent disbarred. Settle order on notice. 



Junm 80, 19ia 


(119 M. T. sei.) 

899 — Abaxdohhbht or 

One cannot be conrlcted of twing a disorderly person under 
■ecUon 899 of tbe Code of Criminal Prooednre In tliat he hu 
abandoned bla wife and children without tnpport onlen It be 
■hown that the famllr Of the defendant U liable to become a 
burden npon the public. 

(I.) Sajcb— PacKv NKoasABT 10 BunAiif CoitTicmnr. 

Where It appear* that defendant left hla wife and two chlldnai 
becanae ahe refoaed to dlipowcM a tenant with whom the huiband 
charged ahe had Improper relatlona; that be paid her about four- 
teen dollara a month; that the wife wai able to earn about five 
dollara a week and had no rent to par; that no attempt had been 
made to get necoeeariea on the husband'a credit, and that the 
hnaband on whom no further demanda had been made had no 
reaaon to apprehend that hla family would become a public charge, 
the proof la not ■ulDclent to aoitaln a eonrlctlon. 

Appkal hj the defendant, Michael Smith, from a judgment 
of the Coimt7 Court of Albany county rendered againat him on 
the 3l8t day of March, 1910, affirming a judgment of the 
Police Conrt of the city of Albany Mmvicting the def^idant of 
being a disorderly person. 

WiUiam E. Wootard, for the appellant. 

Harold D. Alexander and jBoUin B. Sanford, for the re* 

• See Notes, Vol U, p. 412. 



SlUTH, P. J.: 

Tbe defendant has been convicted of being a disorderly 
person, under section 899 of tbe Cknle of Criminal Procedure^ 
after having failed to give a bond for $700 tipon the order of 
the police justice of the city of Albany, made pursuant to sec- 
tion 901 of said Code. The evidence upon which the convic- 
tion rests is that of the complainant alon& From this evi- 
dence it appears that in May, 1905, the defendant left tbe 
complainant and her two children, charging her with adultery 
with a tenant in the house, and saying to her that if she would 
dispossess the tenant be would come back. This she refused 
to do, claiming that tbe tenant had a lease for a year and had 
a right to stay. It does not appear that she made any effort 
to get the tenant to leave, in order to induce her husband to 
come back and live with her, Tbe bouse in question was a 
frame bouse, situated on Morton street, consisting of two 
stories and a basement, and was owned jointly by tbe com- 
plainant with her sister. Tbe complainant's family occupied 
tbe lower story and the basement; tbe apper story was occu- 
pied, or at least part thereof was occupied, by this tenant, 
and the rent was being paid to the sister. The property was 
assessed for about $2,000, and was worth probably about 
$3,000. The complainant's interest in this property about two 
years before the proceedings was apparently sold to her sister, 
and, as far as it can be gathered from tbe evidence, under the 
agreement that tbe complainant should have tbe right to live 
there, rent free and upon the payment of $200. Shortly after 
their separation the complainant brought the defendant before 
the Police Court of the city of Albany, charging non-support. 
Whereupon tbe defendant agreed to pay to her seven dollars a 
week for her support and that of tbe children. This has not 
been paid, but up to the time of tbe commencement of this 
proceeding tbe defendant paid about fourteen dollara a mtnttb 
to the complainant The complainant has been able to earn 



from tliree to five dollars a week in sewing, and this fonrteen 
dollars a month, together with the three to five dollars a week 
has apparently been the sole source of income of the com- 
plainant for the sapport of herself and children sinc« the sep- 
aiation. She has no rent to pay, no taxes and no repairs. 
Prior to the commencement of this proceeding for three years 
and a half, the complainant had made no demand npon the 
defendant for further support, had given no notice to bim that 
she or her children were liable to become a charge upon the 
public, nor had she communicated with him in any way. Upon 
the facta as appear before us the defendant is liable for all 
necessaries that may be furnished to his family. It does not 
appear that any attempt had been made to procure such neces- 
saries upon the faith of such liability, or that such necessaries 
conld not easily be procured from this source. There is some 
evidence to the effect that there bad been sickness, both of the 
dkildren and of this complainant, and some doctors' bills and 
coal bills that were not paid. It is not shown how much these 
bills were, and the complainant is shown to have bad at least 
three or foar dollars in her possession at the time of the com- 
mencement of the proceeding. Upon this evidence the police 
justice of the city of Albany required the defendant to give 
an undertaking of seven hundred dollars, conditioned that he 
would support his family for the year then following. Upon 
bis statement that be was unable to give such an undertaking 
be was committed to the county jail for a period of ninety days. 
This judgment has been affirmed by the Albany County Court, 
and from the judgment of affirmance this appeal has been 

However general may be the wording of the section under 
which this proceeding is taken, it seems to be settled law that 
in order to justify a judgment of conviction thereunder there 
must be proof sufficient to show that the family of the defend- 
ant is liable to become a burden upon the public. In People 



V. Crouae (86 App. Dir. 852) a precisely similai: proviBiwi of 
the charter of Greater New York was under examination. 
(See Laws of 1897, chap. 878, §, 685, as amd. by Laws of 
1901, chap. 466.) In the opinion of the court in construing 
this charter, we find this interpretation; "We are likewise of 
opinion that there waa not sufficient evidence to establish that 
the complainant was likely to become a charge upon the public. 
Her children were concededly out of this jurisdiction ; the evi- 
dence shows that she has been earning sixteen dollars per 
month as a domestic servant, and there is no evidence that she 
is ill, or that there is any reason why she may not in the future 
continue to find employment, and as the purpose of section 685 
of the revised Greater New York charter is to protect the public 
from such a charge rather than to adjust domestic relations, 
there is a further reason for a reversal of the judgment." In 
People ex rel. Feeney v. Dershem (78 App. Div. 626) the opin- 
ion of the court is adjudicating upon a charge under this same 
section of the Greater New York charter says: " The offense 
is of a criminal character, and the statute being penal must be 
strictly construed. * * * As the statute and its kind do 
not afford a civil remedy for the support of the wife, but are 
designed to prevent her from becoming a charge upon the 
public purse, * * * an essential fact to be established 
was the danger of such charge." In People ex rel. Demoa v. 
Demos (115 App. Div. 410), in discussing this same pro- 
vision of the Greater New York charter, the opinion in part 
reads : " To justify a conviction there must be proof that the 
wife or child is likely to become a charge upon the public." 
(See, also, People v. Miller, 30 Misc. Hep. 360; People v. De 
Wolf, 138 App. Div. 880; Goetting v. Normoyle, 191 N. Y. 
871.) The evidence shows that the defendant is a master 
plumber, and at one time agreed to pay seven dollars a week to 
his family's support. If this were a civil action to require the 
defendant to provide further support for his family the facts 



as bere proveD, in the absence of other evidence, would give full 
justification for a decree reqairing a further provision hy de- 
fendant for the family support Inasmuch, however, as the 
purpose of this section is not to furnish appropriate provision 
for the family support, but simply to prevent the famUy from 
becoming a public burden, the proof, in my jndgmen^ is not 
adequate to sustain the charge. It does not appear that tbe 
defendant had any reason to apprehend that his wife and chil- 
dren were likely to become a public charge. For over three 
years no further demand had been made upon him. It is un- 
fair to him to require him to give a bond of $700, which, per- 
chance he is unable to give, or be confined in jail for ninety 
da^, without dear proof of the danger to the public against 
the statute was enacted to safeguard. 

The judgment of conviction should, therefore, be reversed 
and tbe defendant dischaif;ed. 

AH concurred. 

Judgment of conviction reversed. 



June 2B 1910. 


(139 App. DlT. 344.) 


A demurrer !■ not & plea to an Indictment. 

(2.) Same^-Coob Cbih. Pbo. Sec. 367. 

By section 357 of tlie Code of Criminal Procedare a defendant 
In a criminal action la Klren an absolute right to two dars after 
blB plea In which to prepare for trial, If he require It. 

(8.) Same. 

Where the defendant In a criminal action having had two 
notions to dismiss the Indictment denied. Interposed a demurrer 
which was disallowed with leave to plead, and the district attorney 
thereupon served notice that on a certain dar he would move the 
case tor trial, hut no opportanlty was given defendant after the 
denial of bis demurrer to enter a plea In a court presided over br 
a Judge not disqualified to act. It Is reversible error for the court 
to compel the defendant to proceed with the trial on the da; 
named after he had entered a plea of not guilty and asked for an 
adjournment of two days to prepare for trial. 

(4.) Same— Code Cbih. Pbo. Skc. 642. 

The error la not one within the purview of section 542 of the 
Code ot Criminal Procedure which permits the court on appeal to 
give Judgment " without regard to technical errors or detects or to 
exceptions which do not affect the substantial rights ot the 

(B.) Same. 

The defendant did not waive the provisions of section 8E7 of 
the Code ot Criminal Procedure by announcing In open court that 
he was ready for trial and by refusing to plead. If auch annonnce- 



ment and nfusal were made before a Judge dltqiwlifled to act 
Whatever took place before nicb Judge waa coram item fniice aa 
to the defendant 

Appeal hj the defendant, George W. Harper, from a judg- 
ment of the County Court of Clinton county in favor of the 
plaintiff rendered on the 13th day of January, 1909, convict- 
ing the defendant of the crime of libel. 

R. M. Moore and John E. Judge, for the appellant. 

Arthur 8. Hogue, District Attorney, for the respondent. 

Cochrane^ J.: 

The defendant was indicted at a term of the Supreme Court 
in April, 1908. Before any proceedings were had thereon the 
indictment was transferred to the Coxmty Court, When the 
defendant was arraigned in the latter court in May, 1908, he 
made a motion to dismiss the indictment on the ground of 
informalities in its presentment. The cotmty judge announced 
that he was disqualified from acting in this particular case and 
made no determination of die motion and no plea was entered. 
Subsequently the motion was made and denied at a session of 
the court held by a county jndge of another county. Another 
motion was also made and denied to dismiss the indictment 
because of illegal evidence before the grand jury. A demurrer 
to the indictment was subsequently interposed by the defendant, 
which was disallowed and leave given him to plead to the in- 
dictment. On or about January 2, 1909, the district attorney 
served on the defendant a notice that on the 11th day of Janu- 
ary, 1909, he would " request the court to order the defendant 
to plead to the indictment and move at once for triaL" Ko 
plea bad up to that time been entered, and there seems to have 
been no opportunity for the defendant, after the disposition of 
his motions and demnrrer, to enter such plea in a court pre- 
sided over by a judge not disqualified to act. On the day fixed 



by the district attomej La his said notice, the court web held 
hj a count; judge of another count; and the defendant entered 
his plea of not guilt;. He thereupon demanded two days in 
which to prepare for trial after bis plea, as provided b; sec- 
tion 357 of the Code of Criminal Procedure. Thia motion was 
denied on the ground that the demurrer constituted a plea to 
the indictment, and the court directed that the trial proceed 
forthwith. The def^dant excepted to the ruling of the court, 
and stated that be proceeded vith the trial under objection and 
protest, and that he claimed the statutory right to an adjourn- 
ment of two days. The trial was immediately commenced and 
resulted in the conviction of tbe defendant on the following 

The court was in error in holding that the demurrer consti- 
tuted a plea to tbe indictment and in depriving the defendant 
of his statutory rig^t of two days between bis plea and tbe 
trial. " The only pleading on the part of the defendant is 
either a demurrer or a plea." (Code Crim. Proc. § 321.) A 
clear distinction is thus made between a " demurrer " and a 
" plea." They are both pleadings, but die former raises an 
issue of law, while the latter raises an issue of fact, and they 
are not interchangeable terms. Section 330 of the Code of 
Criminal Procedure provides that " if the demurrer be disal- 
lowed the court must permit tbe defendant at his election to 
plead, whicb be must do forthwith or at such time as the court 
may allow." That practice was pursued in the present case, 
but tbe defendant never had an opportunity to plead after 
the disallowance of bis demurrer until the day he was re- 
quired to proceed with his trial. Section 332 of tbe Code 
of Criminal Procedure specifies three kinds of pleas, viz., 
guilty, not guilty, and a former judgment. On tbe day of bis 
trial the defendant interposed the plea of not guilty. Section 
357 provides : " After bis plea the defendant is entitled to at 
least two days to prepare for bis trial if he require it." This 



oonfera on the defendant an abeolnte right of which he cannot 
be deprived without hia consent The conrt coold not, there- 
fore, disr^ard this abeolnte right of the defendant and place 
him on trial immediately on receiving hia plea. 

This ia not each an error as is specified in section 542 of the 
Code of Criminal Procedure, which permits the court on the 
appeal to give judgment " without regard to tedmical errors 
or defects or to exceptions which do not affect the substaiitial 
rights of the parties." To do that would constitute a substitu- 
tion of the judgment of the trial court for the judgment of the 
defendant in respect to a matter which the statute has confided 
absolutelj to the judgment of the latter, and would reduce the 
question to a mere consideration of whether the discretion of 
the court had been so exercised as not to jeopardize the rights 
of the defendant, and would practically abrogate said section 
857. It is the purpose of that section to give the defendant 
two days after his plea to prepare for his trial, if he requires 
11, whether he needs it or not. 

The learned district attorney argues that the defendant 
waived this provision by previously announcing in conrt that 
he was ready for trial and by a previous refusal to plead. The 
difficulty with that argument is that those occurrences took 
place in a conrt which was not presided over by a judge quali- 
fied to act in this case. Whatever took place on those occasions 
was coram non judice as to this defendant. 

We appreciate that the trial was much delayed and perhaps 
by reason of obstacles nnneoessarily interposed by defendant. 
But that does not justify us in depriving him of a right which 
ia absolutely guaranteed him by statute. 

The judgment of conviction must be reversed and a new 
trial granted. 

All concurred. 

Judgment of conviction reversed and new trial granted. 



Tebmar;, 19L0. 

(66 HlK. 425.) 

(1.) Fbbjubt — On ExAioFATiox or ImuBUioB CoMPunr— Laws 

190», Ch. 800. 
The proTlBloii of diftpter 800 of the Laws of 1909, vblcb added 
to the Inaarance Law a nev eectlon to be dealgnated aa aeotlon 
63, waa Intended to extend the jurisdiction of the Snperlntendent 
of Insurance to Insurance corporations of erei? character and, by 
implication, to authorlce him to examine the affairs and question 
under oath the offlcere of anr fraternal beneficiary society or 
town and county co-operative Insurance corporation, notwith- 
standing section 67 of the Inonrance Law which had theretofore 
exempted such socletlea and corporations from such examina- 
tions; and the false swearing of any oScer of any such society 
or corporation on any such examination, upon a subject material 
thereto, constitutes perjury. 

(2.) SamB — iMtlCTHEKT. 

Difficulty of proof does not Invalidate an Indictment; and an 
Indictment for perjury In such a case is good, though the tact as 
to which perjury la alleged Is the belief or opinion of the witness. 

(3.) Sauk. 

Where an indictment states a fact to be material to an examina- 
tion In such a case, though the statement of tlie witness waa aa 
to hl8 belief in the existence of such tact only, tlie indictment 
should be sustained. 

Dbmukbeb to indictment 

Oeorge H. Bond, District Attorney, and Alfred Hurrel for 
the people. 

• See notes. Vols. 12-2E6, 16-491, 17-408. 



WiUiam Nottingham Bad Ceylon B. Lewis, for defendauL 

AnTBBBws, J. The defendant was indicted bj the grand 
jury of Onondaga county for perjury. To tbia indictment 
varioas objections bave been taken. 

First, The defendant was the president of a fraternal 
beneficiary society. The statements allied to have been false 
were made upon his examination, onder oath, before an ex- 
aminer of the Superintendent of Insurance of this State. 

Concededly to support the indictment the examination must 
have been authorized by law. Otherwise the evidence given 
was a mere voluntary statement. It is claimed that it was not 
so authorized. 

Article I of the IJisnrance Law (Laws of 1909, chap. 33) 
creates the Insurance Department of the State and its Supers 
intendent. It then contains various provisions regulating in- 
surance corporations, foreign and domestic. Among them is 
section 39. This permits the Superintendent, personally, or 
threugb an examiner named by bim, to examine under oath 
any ofBcer of an insurance corporation as to the condition of Ma 
company. On its face this provision would be applicable to 
insurance corporations of every kind. Its effect, however, is 
subsequently limited. Section 57 provides that none of the 
provisions of the first article shall apply to fraternal benefi- 
ciary societies or to town and county co-operative insurance 
corporations. Likewise section 283 of article VII, relating 
to fraternal beneficiary societies, provides that such societies 
shall be exempt from the provisions of the other insurance laws 
of the State and shall be subject only to the provisions of this 
article and such provisions of article I as may be specially 
applicable thereto. 

Therefore, as the law stood originally, the Superintendent 
had no authority to examine, under oath, the ofiScers of a 
fraternal beneficiary society. The powers right and duties of 



snch a society and its officers were defined exduaively by arti- 
cle VIL 

SqcIi a oorporation was boond to nuke an annnal report 
The Snperintendent could address to it any additional inquiries 
he might deem material, and the ofiBcera most reply, in writing, 
under oath; and it was sntject to visitation and inspection by 
him. % 237. It was also prohibited from inating a contract 
of reinsurance without his consent. § 240. 

This being the c<»iditiou of affairs, chapter 300 of the Laws 
of 1909, known as " An act to amend the Insurance Law rela- 
tive to proceedings against the liqoidation of delinquent inaor* 
ance corporations," was passed. It amended article I of the 
Insurance Law by adding a section thereto known as section 
63, and repealed all acts or parts of acts inconsistent with it. 

This new section provided that it should " apply to all do- 
mestic corporations, associations, societies and orders to which 
any article of this chapter is applicable^ anything as to any 
such corporations, associations, societies or orders provided in 
this article to the contrary notwithstanding; and the words 
' corporation ' or ' corporations ' herein shall also include all 
such associations, societies and orders." 

This statute, therfore, by its terms, clearly refers to all oor- 
porations of every kind engaged in the insurance business 
including fraternal beneficiary societies, organized under arti- 
cle VII, and town and county co-operative insurance corpora- 
tions, organized under article IX 

The provision that the law is applicable to every kind of 
domestic insurance corporation, anything provided in article 
I to the contrary notwithstanding refers to section S7 which 
provided, as has been said, that the provisions of article I 
do not apply to corporations of these two classes 

The new statute provided that where any such corporation 
(a) was insolvent ; (b) refused to submit its books and papers 
to the inspection of the Snperintendent ; (c) has selected to 


THE PSOPi;.E v. RBBD. 27 

make any deficiency in its capital, if it is a stock oorporation, 
or in its reserve, if it is a mutual corporation; (d) has trana- 
ferred its property by a contract of reinsarance witbont tbe 
eonaent of the Superintendent ; (e) is found, after an examina- 
tion, to be in such a condition that its further transaction of 
business would be hazardous to its policyholders, to its credi- 
tors or to tbe public ; (f ) bas wilfully violated its charter or 
any law of the State, and (g) whenever any officer thereof haa 
refused to be examined, under oath, touching its affairs, the 
Superintendent might apply to the Supreme Court for on order 
permitting him to take possession of its property and conduct 

The question to be deterlnined, therefore, is whether this 
act granted to the Superintendent a new remedy where the 
rules already in force were violated, or whether it conferred 
upon bim additional powers and duties. Was it the intention 
to extend a supervision and control over beneficiary and like 
societies similar to that already given bim over mutual and 
stock companies} 

It may be observed, at the outset, that there is nothing in 
the nature of beneficiary or town and county co-operative in- 
surance corporations which would render it inappropriate to 
confer upon the Superintendent power to examine tbem or 
their officers. There is no real reason why a distinction should 
be made in this respect between tbem and mutual or stock cor- 
porations. On tbe contrary, if tbe intention was to grant this 
authority, the public good requires tbe statute in regard thereto 
to be liberally construed. 

Next, tbe Legislature seems to have taken great care that 
the law should be broadly applicable. It applies to all do- 
mestic corporations^ associations and orders, anything pro- 
vided in article I to the contrary notwithstanding. The word 
" corporation " is to include all such associations. It then con- 
tinues : " Wherever such corporation is insolvent ; " whenever 



each corporation is found, after examination, to be in an on- 
safe condition ; whenever any officer of such a corporation has 
refused to be examined under oath touching its affairs, then 
the Superintendent may take action. 

Does this impliedly give to the Superintendent power to 
make such an examination — to question ofi^rs under oathl 
Or does it simply mean that, where he already haa such power, 
he may apply to the court for further relief ? 

Hy belief is that it waa the intention of the Legislature to 
extend the jurisdiction of the Superintendent to insurance 
corporations of every character and to confer upon him the 
powers necessary for that purpose. 

Any other interpretation would make the statnte largely 
meaningless. It would render inexplicable the care with which 
the new law is made to apply to every kind of insurance cor^ 
poration and association, notwithstanding the exceptions con- 
tained in section 57. 

Take, for instance, town and county co-operative insurance 
corporations regulated by article IX. In so many words the 
Legislature says the act applies to than. 

Over them previously the Superintendent had no control 
whatever. No annual report was filed with him. It was filed 
with the town or county clerk and with the Secretary of State. 
The Superintendent bad no right to visit, inspect or examine. 
And it was expressly provided that such a corporation was not 
required to make any report or statement, nor perform any 
requirement not contained in article IX or in the by-laws of 
the corporation. § 273. 

Therefore, if the defendant's argument is to be adopted, 
chapter 300 of the Laws of 1909, in spite of its statement that 
it applies to such a corporation, makes slight changes in its 

The Superintendent may apply to the court if it is in- 
solvent How is he to discover that fact if he may not ex- 



amine into its affairs? He may so apply if it has wilfully 
violated its charter or the laws. The same qaestion may be 
asked. He may also apply if a corporation has refused to 
submit its booka to his inspection; has made a contract of 
reinsorauce without his consent; is found after ezaminaticm 
to be in an unsafe condition; or when its officers refused to 
be examined under oath. None of these things was required 
by article IX. So such a corporation is unaffected, unless 
power to visit, to inspect, to examine is conferred by the 

To a large extent the same thing may be said with r^ard 
to a fraternal society organized under article YII. It is tme 
that it was required to file an annual report with the Super- 
intendent; that he was authorized to address additional in- 
quiries to it which must be answered by its officers, in writing 
under oath; and that it was subject to his visitation and inspec- 
tion. Therefore, without additional powers^ he might be able 
to determine whether it was insolvent; whether it had rein- 
sured without his consent or whether it had violated its char- 
ter or the laws. But it would be difficult to do so. 

Chapter 300 was a statute intended to protect policy and 
certificate holders and the public. Possibly it might have 
been more carefully drawn. But where it saya that it uses 
the word " corporation " aa referring to beneficiary societies, 
and that, if such a society ia found after examination to be 
unsafe, then a remedy is provided, it means that such an ex- 
amination may be bad. When it says that if " any officer 
thereof " — of such society — " refuses to be examined under 
oath," it confers the power to request such officer to submit 
to examination. Whether anything further is implied — 
whether the Superintendent can compel the officers to submit 
to such an examination, if they refuse — whether he has any 
remedy other than that provided by this section, need not be 
determined here. But where such a demand is made on the 



officers, for tbe purpose of preventing the management of the 
society leaving their hands, appear and submit, the statnte 
authorized the Superintendent to administer the oath and to 
conduct the examination; and an indictment for perjury be- 
cause of answers made on the examination will be sustained. 

Second. The subject of the investigatiim was whether a 
certain contract between tbe defendant and the People's 
Mutual Life Insurance Association and League was a valid 
and binding contract; whether any amount was due to the 
defendant thereon and, if so^ how much. Tbe indictment 
alleges that Mr. Beed stated that he thought such contract was 
valid and a liability and that the corporation was legally liable 
thereon to him and that tbe amount due him was over $30,000. 
It is said that an indictment for perjury cannot be sustained 
where tbe evidence given was of such a character. I think 
this is an error. It may be difficult to prove, but it is perjury 
for a witness to testify that he thinks or believes a certain thing 
to be tme when he does not so think or believe it. 

Third. The indictment charges that the qnestion as to the 
validity or invalidity of such contract was a material matter 
in the examination. It does not state that Mr. Reed's belief 
as to whether it was valid or not was material. It is said that 
this is a fatal defect 

In the fact as to which testimony is given is material, then 
that testimony is also material if it has a tendency to prove 
or disprove that fact — if it legitimately may influence the 
court on the question at issue. If the inquiry were as to 
whether A had a conversation with B, B's statement that he 
did not remember would be material. It would not be neces- 
sary to aver that whether B remembered or not was materiaL 
It would be enough to state that tbe qnestion of the conversa- 
tion was materiaL Then the court could draw its own conclu- 
sions from the facts appearing on the face of the indictment. 

Bo, here, the matter of the validity of the contract between 



the corporation and Mr. Beed being said to be material, Mr. 
Beed's atatement that be believed it valid was also materiaL 

Other objections of a less grave character are made, but 
none of them seems to be snbstantiaL 

I most overrule the demurrer to the indictment. 

Demurrer overruled. 



Jtme 1910. 


(139 App. DlT. S7i.) 

(L) Pkbjttbt — SuiriuiBKCT or tifsicmnT. 

An Indictment far perjury In giving falae t««ttinonr need not 
Bet forth the facta upon which the matertaltty of the erldence 
depends; It la anffldent If It chargee generallf that the evldenca 
was material. 

(2.) Same — Jcdicial Notice — Charikk Cttt or New Tosk. 

The court will take judicial notice of the prorlftlons of the 
charter of the city of New York. 

<3.) Same — ErmEDCE. 

An indictment for perjury In gtvlDs false testimony before com- 
mlsaionera, appointed by the mayor of the city of New York, to 
conduct a special examination into the acounts and methods of the 
bureau of licensee will not be held defective an demurrer where 
by B general allegation it Is alleged that the testimony was 
material, even though the defendant, who falsely testified that 
he had not received money from the proprietor of a common show 
In that part of the city known as Jamaica, la not allied to havo 
been connected with the city bureau of licensea, and although 
the person who paid the money was not required to pay a license. 
This, because under the general allegation that the testimony was 
material, the fact that a license was required might be proved, 
and although the defendant was not connected with the bureau 
of licenses, his testimony in r«epect to the receipt of the money 
might t>e materia] as a connecting link establishing corrupt prac- 
tices In the bureau of licenses. 

Appeal by the plaintiff, The People of the State of New 
York, from an order of the Court of General Sessions of the 

See Notes, Vols. IZ-ies, lfr-4ei, 17-408. 



Peace in and for tlie county of New York, entered in the offioa 
of the clerk of said conrt on the 15th day of December, 1909, 
allowing a demurrer to the indictment against the defendant. 
The opinion of the Court of General Sessions is publiahed 
in People v. Tillman (63 Misc. Bep. 461). 

Robert 8. Joknttone, Deputy Assittant District Aitomey, for 
the appellant. 

Henry W. Unger [Abraham Levy with him on the brief], for 
the respondent 

Lauohijh, J.: 

The indictment charges the defendant with the crime of 
perjury, which, on the 23d of October, 1908, the time the 
indictment was fonnd, was defined by section 96 of the Poial 
Code (now section 1620 of the Penal Law), and was fonnd 
by a grand jury in the Court of General Sessions of the Peace 
in and for the county of Kew York. The grounds of the 
demurrer are that the indictment does not conform to sections 
275 aad 276 of the Code of Criminal Procedure, and does not 
state facts sufficient to constitute a crime. The point upon 
which the demurrer was sustained is that it appears on the 
face of the indictment that the testimony alleged to be false 
was not material within the contemplation of the statute. No 
attempt is made to sustain the order on any theory other than 
this. The contention in support of the demurrer is that the 
indictment fails to state facts sufficient to show that the crime 
was committed in that it is not shown that the testimony was 
material, and, on the contrary, it appears that it was not. 

It is charged in the indictment that on the 16th day of 
October, 1908, tbe defendant duly appeared as a witness before 
the commissioners of accounts of tbe ci^ of New York, who had 
theretofore been duly appointed by the mayor, and who wen 



by his diTection conducting " a special examinaticm " into the 
" accounts " and " methods " of the bureau of licensee, which 
is alleged to be a municipal office attached to the mayor's o£Bce, 
and on being duly sworn by ono of the commissionera then and 
there faUely testified that he had never received any money 
from one Francis M. Edwards, who, it is alleged, was the 
proprietor of a common show in that part of the city known as 
Jamaica. It is charged, in effect, that it appears by the provi- 
sions of the charter, of which we may take judicial notice, that 
it was tbe duty of the commissioners of accounts, among other 
things, to " make such special examinations of the accoimts and 
methods of the departments and offices of the city and of the 
counties of New York, Richmond, Queens and Kings, as the 
mayor may from time to time direct, and such other examina- 
tions as tbe said commissioners may deem for the best interests 
of the city, and report to the mayor and the board of aldermen 
the results thereof," and that " for the purpose of ascertaining 
facts in connection with these examinations they shall have 
full power to compel the attendance of witnesses, to administer 
oaths and to examine such persons as they may deem necessary," 
(Greater N. T. Charter [Laws of 1901, chap. 466], § 119.) It 
ia further alleged in the indictment that " at and upon the said 
examination by and before the said commissioners of accounts 
as aforesaid it then and there became and was material whether 
he, the said Arthur 0. Tillman, ever received any money from 
one Francis M. Edwards, tbe proprietor of a common show in 
that portion of the City of New York commonly called 

It is conceded that it is not necessary that the indictment 
should set forth the facts upon which the materiality of tbe 
evidence depends, and that it ia sufficient if it charges generally 
that the evidence was material, and this rule of law appears to 
be fully sustained by the authorities. {Wood v. People, 59 
N. Y. 117; People v. Orimahaw, 33 Hnn, 505; 30 Cyc 1434, 



1435, 1436; 16 Ency. PI. & Pr. 348, 344; 2 Bishop New Crim. 
Proc [4tli ed.] § 921; 2 Wharton Crim. Law [10th ed] 
§ 1304.) The principal question, therefore, is that upon which 
the case was decided below, namely, whether the indictment 
shows that the teatimonj cannot be material and thoB destroys 
the allegation that it was material. The theory of the opinion 
below and upon which the order is sought to be sustained is 
that since there is no allegation that the defendant was con- 
nected with the bureau of licenses, it must be presumed that 
he was a stranger thereto, and that it is wholly immaterial 
to any inquiry concerning the " methods " or " accounts " of 
the bureau of licenses whether be received any money from 
Edwards, the proprietor of a common show at Jamaica, it 
appearing from the allegations of the indictment that the 
ordinances requiring that common shows be licensed are con- 
fined to the county of New York. We do not deem it necessary 
to decide whether if the allegation in the indictment that the 
ordinances requiring that common shows be licensed was in 
force in the County of New York were material, it is sufficiently 
overcome or modified by the other allegations to the effect that 
there shall be a branch office of the bureau of licenses in 
each borough to admit proof upon the trial that the ordinances 
were in force throughout Greater New York. Under the gen- 
eral allegation that the false testimony was material to the 
investigation, every fact essential to show its materiality includ- 
ing an ordinance that the proprietor of a common show required 
a license might be proved. Nor do we, for the same reason, 
deem it necessary to decide whether the statement in the 
indictment that Edwards was the " proprietor *' of a common 
show, if it were material, would be sufficient to admit evidence 
that he was engaged in or carrying on the business of a 
common show, within the scope of section 306 of the municipal 
ordinances set forth in the indictment The materallty of the 
testimony being sufficiently stated by a general allegation to 



tlie effect that it was material, it is manifest that the ohjectiona 
made to this indictment below and upon which it is sought 
to soatain the order may arise upon the trial, but cannot be 
determined on a demurrer t« the indictment It is manifest, 
and it is conceded, that if the defendant was connected with 
the bureau of licenses and if Edwards required a license, the 
testimony was material It directly follows from this that the 
indictment is sufficient, for these facts are not negatived, it not 
being stated in the indictment that Edwards did not require 
a license, or that the defendant was not an employee of the 
city in the bureau of licenses. We do not, however, rest our 
decision on this narrow ground, for it is evident that even 
though the defendant was not connected vrith the bureau of 
licenses his testunony with respect to the receipt of money 
from Edwards might he material to show a connecting link 
to establish corruption or irregular practices on the part of the 
bureau of licenses in conducting business with those requiring 
or supposed to require licenses. 

It follows, therefore, that the order should be reversed and 
the demurrer disallowed, 

Ingbaham, p. J., Clask, Scott and Millkb, JJ., con^ 

Order reversed and demurrer disallowed. Settle order on 



JolT 7, IBIO. 


(13S App. DiT 5»6.) 

(1.) EXtobtiom. 

One may be eonrlctett ol the crime of extortion by mevis of 
mitten tbreata to Ull, altbougb tbere 1j no direct evidence that 
he wrote the letterg. It It be shown that he acted In conjonctlon 
with thoM who did write them. 

Bridence In a proaecntlon tor extortion examined, and Aeld 
to snataln a Judgment of convlGtlon. 

(3.) ImnsxRCE or Qdilt S um c izN T. 

In a proeecntlon tor ench crime the proof need not exclude any 
poaaible Inference of Innocence; It la lufllclent If an Inference of 
gollt Ifl the only one that can be reaaonablr drawn from the 

Apfkal \>y the defendant, Oaiseppe Adrogna, from a judg- 
ment of tbe Court of Gieneral Sessions of the Peace in and 
for the county of New York, rendered against the defendant 
on the 22d da; of April, 1909, convicting him of the crime of 
extortion, and also from orders denying tbe defendant's motions 
for a new trial and in arreat of judgment. 

John Palmieri, for the appellant. 

Bobert 8. Johnstone, for the respondent 

See Notes, Tob. 8-466, 24-416. 



McLadohuit, J.: 

The defendant appeals from a judgment convicting him of 
the crime of extortion. The indictment charged, in aabstance, 
that on the 1st of November, 1908, he feloniously obtained the 
eum of seventy-five dollars from one Scarito by means of letters 
threatening to kill him unless the money were paid. The 
principal question presented on the appeal is whether the 
evidence ia sufficient to sustain the conviction of the crime 

At the trial it appeared that in the month of October, 1908, 
Scarito received several threatening letters, three of which were 
introduced in evidence, demanding various sums of money and 
containing threats that he would be killed and his property 
destroyed if he did not comply with the demands made. All 
of the letters were written in Italian and signed " Black Hand." 
After receiving the first two or three letters, Scarito consulted 
the defendant concerning them and the latter agreed to find 
out who the writer or writers of the letters were. Shortly 
thereafter he informed Scarito that he had obtained the desired 
information and after a niunber of interviews, in which the 
defendant urged Scarito to comply with the demands — other 
letters of similar purpose having been received by him in 
the meantime — it was finally agreed Scarito should pay seventy- 
five dollars to settle the matter. This amoimt he paid to 
the defendant, according to the testimony of Scarito and his son, 
on the Ist of November, 1908, and on the following day Scarito 
received a letter acknowledging its receipt and demanding that 
he should deliver all prior letters received by him on the 
subject " to the person who is in charge of this — to the person 
that you are trusting." He then had another conversation with 
the defendant, who asked him if he had received the letter 
acknowledging the receipt of the seventy-five dollars, and de- 
manding the return of the letters, in response to which Scarito 
said he had, but had burned all of them. 



There is do direct erideuce that the defendant wrote the 
letters or any of them, and for this reason it is urged that the 
defendant could not be convicted under the indictment charging 
extortion by meana of threats that the defendant would kill 
jScarita But he could be convicted under the indictment not 
only if he wrote the letters himself, but also if he acted in 
ctMijunction with those who did write them. (People v. Sliven, 
112 N. Y. T8 ; People v. McKane, 143 id. 465 ; 9 N. T. Crim. 
377; People v. Giro, 197 id. 152; 24 N. Y. Crim. 256.) Tor 
this reason the court did not err in refusing to charge that 
before the defendant could be convicted the jury must find 
that the money was secured through fear " induced by a threat 
made by the defendant that he, the defendant, would kill the 
complaining witness." The other refusal to charge, which it ia 
claimed constituted error, was not excepted to. 

It is true that the evidence connecting the defendant with the 
letters is somewhat unsatisfactory, hut when all of it is con- 
sidered, it is quite sufficient to sustain the finding of the jury. 
Scarito testified that the defendant persistently refused to tell 
him the name or names of the writers of the letters and, when 
he asked him to do so, would answer, " Yon have to deal with 
me and nobody else," and after the letter was received acknowl- 
edging the receipt of the seventy-five dollars paid, and demand- 
ing return of the letters, defendant said to Scarito, " Give me 
back my letters, or the letters which you have received " and 
" return the letters according to the instructions in that letter 
and in that receipt." 

After a careful consideration of all the evidence offered at the 
trial it seems to me only one conclusion can reasonably be 
drawn from the same, and that is that the defendant either 
wrote the letters himself or else he aided and abetted the person 
or persons who did write them and if he did either he was 
guilty of the crime charged in the indictment. The question 
of his guilt was fairly submitted to the jury, the court charg* 



ing that if they had a reasonahle donbt apon the aubject defend- 
ant must be acquitted. Proof to exclude any possible inference 
of innocence is not required (People v. Bonifacio, 190 N. Y. 
150; 21 N. Y. Crim. 122), but simply such that the inference 
of guilt ia the only one that can be reasonably drawn from it. 
The defendant had a fair trial, the evidence amply sustains 
the verdict, and no errors were committed which would justify 
a reversal of the judgment 

The judgment of conviction is, therefore, aflSrmed. 

Inorahau, p. J., Lauohuit, Soott and Dowuno, JJ., 

Judgment and orders affirmed. 



Jal7> IBia 


(88 Ulsc 442.) 

jAqtKm Tax l&v — Folick Supbkvision. 

Under the expraH prorfsious of tlie Uqnor Tax Law police 
ofllcera in cities have tbe right to go Into, Inveatlgate and Inspect 
any portion of premlsea where liqnor la aold In order to ascertain 
whether or not there are rlolatlona of the Liqnor Tax Law, and 
■ucb right of entr? and Inspection Is not conOned to the room 
where the sale of liquor la actnally carried on, but extends, also, 
to any other portion of the premises In anr war connected there- 
with, to the end that It may be determined whether the law is 
being Tlolated. 

HoTiON for an injunction pendente lite to restrain the 
commisBioner of police and other police officers of the city 
of New York from entering the premises of the plaintiff. 

Emil £. Fucs, for motion. 

Archibald H. Watson, Corporation Counsel (James D. Bell 
and Sanders Shanks, Assistants), opposed. 

Kafpeb, J. Holders of liquor tax certificates entitling 
them to traffic in liquor " take them with all the privileges 
and subject to all the burdens imposed upon them hj the 
Liquor Tax Law." Matter of Livingston, 24 App. Div. 51, 52. 
Among these burdens is the prohibition against the use of the 
premises for gambling. And not alone must the holder of the 
certificate refrain from suffering or permitting any gambling 

See Nota, ToL lB-41. 



to be carried on in the room in which liquors ere sold, hut in 
any other portion of the premises which are in any way con- 
nected with that part thereof wherein the traffic in liquors is 
carried on. Liqnor Tax Law, § 17, sabd. 8. 

The plaintiff under an hotel license carries on the business 
of selling liquors in the city of New York in a building the 
second floor of which contains two rooms, all the windows of 
which appeared to be guarded by iron bars and exterior shutters 
that were closed on each occasion that the police visited the 
interior of the premises, or looked at the same from the 
outside. Those two rooms were fitted up with tables and con- 
tained a safe; and, upon the ground floor of the premises, there 
was' a metal-covered door leading to these two iron-barred rooms 
which was kept locked and which the plaintiff himself opened 
with a key on the occasion of the visits of the police. 

The plaintiff claims that he conducts a law-abiding hotel 
and that no gambling or illegal traffic or conduct is carried 
on or permitted by him on the premises; he further claims 
that the police in their visits are committing a trespass, and 
that they already have had a sufficient and reasonable amount 
of inspection, and that further inspection constitutes such an 
annoyance as to amount to a legal trespass and oppression. Be- 
sides showing the general construction of the premises, as before 
stated, the defendants claim that men known to the police as 
gamblers are seen in and about the plaintiff's hotel, and that 
they suspect that the premises are devoted to gambling. 

Plaintiff does not inform the court to what uses such rooms 
are put, and I am at a loss to imagine what a legitimately 
conducted hotel wants with them in their present state of 
construction. As now constructed the rooms are a fortress 
and can be entered only by breaking in and, once in, can be 
departed from only by breaking out. If the proprietor desires 
to be freed from police espionage, he should alter the construc- 
tion and equipment so as to remove suspicion, to say the least. 



It is made tbe ivty, by snbdivision 5 of aection 82 of the 
Liquor Tax Law, of all sberiffB, deputy sberiffs, police officers, 
constables, majors, Tillage presidents and special ageota of tbe 
State CommiBBioner of Excise to enter and inspect any bsUd- 
ing or premises condncted as an hotel; and said snbdirisioD 
makes it a misdemeanor for any person to forbid, obetroct or 
prevent the officers named from free entry into any snch build- 
ing or premises " for the purposes of this act." 

And, by section S7 of tbe Liqnor Tax Law, "All police 
officers are authorized in the performance of their duties to 
enter upon any premises where the sale of liquors is carrried 
on or liquors are exposed for sale at any time when such 
premises are open." 

Hy view is that it was the intention of tbe Legislature to 
confer on police officers in cities tbe right to go into and 
investigate and inspect any portion of the premises where liquor 
is sold, in order to ascertain whether or not there are violations 
of the Liqnor Tax Law. This right of entry and inspection 
is not confined to tbe room where tbe sale of liquors is actually 
carried on, but also to any other portion of tbe premises in 
and way connected therewith, so that it may be determined 
whether the act in any of its inhibitions (one of which is 
gambling) is being viobited. 

While it may be, as said by Mr. Justice Gaynor in Olma v. 
Bingham, 116 App. Div, 804-806, that " It is very easy 
to see tbe extortion that could be practiced on hotel pro- 
prietors by policemen and their superiors if they were per- 
mitted to unlawfully invade hotels and annoy the proprietors 
and guests as they saw fit," tbe plaintiff's suit for an injunction 
falls where the police visits and inspections are shown to be 
not unlawful, but in pursuance to statutory command. 

However onerous it may appear that tbe police shall come 
with frequency into premises where the liquor traffic ia carried 
on under a claim of tbe right of inspection to determine vio- 



lationa of the act, this is one of the burdens which the act 
inflicts upon the bdder of the certificate, and snbject to which 
he accepted it and traffics in liquors. 

The State imposed its restrictions and- limitations upon him 
when he applied for and obtained his liquor tax certificate, 
and he cmducts his bosiness subject to the conditions with 
which the State surrounded bia use of its license. Motion 
for an injunction denied, with ten dollars costs. 

Motion denied, with ten dollars costs. 



July IS. 1910. 


(140 App. DiT. 27.) 

(1.) BxTOKiOK— Thbbat to Chabob AmnADT. 

One who attompU to axtort moMj from UUiOier br « Torbftl 
threat to &eciiss him pnbUclr ol th« crime of mdnlterr Ib cnlltr 
of a telonr rather than of a mlademeanor. 

(2.) Sua. 

Hence, one arrested on a bench warrant upon an Indictment for 
extortion la not entitled to a dlacharge npon habeaa corpui upon 
the BTonnd that he wai already under arreat on a warrant of n 
police Justice for a misdemeanor in eommlttlns the same act 

The Crimea of extortion and blackmail diitlngnlahed, per Wnc 
HoLkrsui, p. J., and Ronsoir, J., diuented.* 

Rerersed. po«t, 200 N. T. 276. 

Afpiai. b; the People of the State of Kew York from an 
order made hy the Bpeeial county judge of Monroe county, and 
entered in the office of the derk of said oonnty on the 5th day 
of April, 1910, soBtaining a writ of habeaa corpus and dis- 
charging the relator from custody. 

Howard H. Widner and ChaHea B. BecMold, for the 

Louis E. Fuller, for the respondent 
• See Notes, Tola 8-466, 24-416. 



WnxiAMs, J. : 

The order should be reversed and the relator remanded to the 
custody of the Bheriff. 

The relator was in cuatody upon a bench wappant iaeaed 
upon an indictment and Bought his discharge upon the ground 
that at the time the indictment waa found he waa under arrest 
upon a warrant issned by the police justice of the city of 
Hochester for a miademeanor in committing the same act 
charged as a felony in the indictment, and that the crime was 
correctly charged as a misdemeanor, of which the Police Court 
had e^Eclusive jurisdiction. The only question raised upon this 
appeal by the appellant is whether the crime cha^d was a 
felony or a misdeameanor. Other questions were raised before 
the special county judge and were considered by him in his 
opinion (66 Misc. Bep. 616), but only this one questioD ia here 
submitted for our determination. If the crime was a misde- 
meanor merely, the order should be affirmed; if a felony, it 
should be reversed. The indictment, in brief, accused the 
relator and one Qano of the crime of an attempt to commit the 
crime of extortion in that they with force and arms did 
feloniously and extorsively attempt to obtain from one Stillsoa 
with his consent $500, such consent being intended to be induced 
by the wrongful use of fear, and a threat to publicly accuse him 
of a crime, the having had sexual intercourse with a woman 
not his wife, he then and there being married to a third person, 
Alice Stillson, against the form of the statute in such case made 
and provided, etc. It is agreed that the threats were verbal and 
not written, and that the relator had been arrested and brought 
before the police justice and the indictment was found during 
the interval in which he was awaiting examination. Extortion 
may be committed by obtaining property from another, with 
his conseat, induced by a wrongful use of fear. (Penal Law, § 
850.) And this fear may be induced by a threat to accuse him 
of a crime. (Penal Law, § 851.) The punishment for extor- 



tion IB impriBomnent not exceeding fifteen years. (Penal Law, 
§ 852.) BUckmail may be committed by sending or delivering 
a letter or writing threatening to accuse another persoD of a 
crime, knowing the oontente thereof, with intent, by meaoa 
thereof, to extort property from him, and is punishable by 
imprisonment for not more than fifteen years. (Penal Law, 
§ S58.) And then by section 857 of the Penal Law it is pro- 
vided that a person who with intent to extort or gain money or 
other property verbaUy makes such a threat aa wonld be 
criminal nnder any of the foregoing sections of the article 
(commencing with section 850), if made in writing, is guilty 
of a misdemeanor. The threat nnder the extortion section may 
be writtoi or verbaL Under the Blackmail section it mtwt be 
written. The making of a verbal threat snch as if in writing 
wonld constitute blackmail would be a misdemeanor nnder 
section 857. We can hardly suppose, however, that the mak- 
ing of a verbal threat snch as would constitute extortion under 
sections 850 and 861 would be a misdemeanor, because if in 
writing as we|U aa verbal it would be extortion. It conld not 
have been the design of the Legislature to make the same 
act both a misdemeanor and a felony punishable by fifteen 
years' imprisonment. The special county judge holds that if 
the threat in extortion is verbal merely, it is only a misde- 
meanor ; that in order to be a felony it must be a written threat 
as well as the threat in blackmail It seems to ns this will not 
answer. If the Legislature intended to provide that the threat 
must be written in order to constitute extortion, it would have 
so provided. Extortion and blackmail are punishable to the 
same extent, fifteen years. In extortion property must be 
actually obtained. In blackmail there need not be any prop- 
erty secured at alL The severity of the crime as regards the 
threat is in the fact of its being written instead of verbal. This 
consideration seems to have made the two crimes equally severe, 
and BO to call for the same punishment Section 857 evidently 



waa intended to refer to blackmail alone, and to provide that 
where the threat was verbal and no property was obtained the 
crime Hhould be merely a miademeanor. That would be a 
reasonable provision; but, as already stated, there could have 
been no design by the Legislature to make the same act both 
a misdemeanor and a felony, and that in sections so nearly 
together as 860, 861 and 857. Again, this latter section deals 
alone with threat^ not with obtaining property by means of the 
threats, and the securing of property is an important element 
in the crime of extortion under sections 860 and 851. Section 
857 does not provide that if proper^ is obtained by a verbal 
threat the crime ahall be a misdemeanor, but if the threat shall 
be verbal it shall be snch lower crime. While in the case of 
People V. Qardner (144 N. T. 119; 9 N. T. Crim. 404) the 
indictment was mider the Fenal Code, yet it is some indication 
of the views of the Court of Appeals as to the crime of attempted 
extortion. Tbe indictment under which the relator was held 
charges tbe crime under tbe Fenal Law of an attempt to commit 
extortion, a felony panishable by imprisonment for fifteen years. 
(g§ 3, 851, 862.) The punishment for the crime charged in 
the indictment is not to exceed seven years and six months. 
(See Penal Law, § 261.) We think die order should be re- 
versed and the relator remanded to the custody of the sheriff. 

All concurred, except UoLsmrAN, P. J., and Bobsoit, J., 

who dissented. 

Order reversed and relator remanded to custody of tbe 



Buvasmm ooubt-app. DiriBxoK-nBST dip. 

JQ17 7, IdlO. 


<1S9 App. DtT. 48S.) 


The Judge on a murder trial mar keep the Jnrr together for §a 
long ft time u In the ezercbe of a wise dlicretloQ be mar deem 
reeson&ble, hat be m&r not dlacbarge them of bla own moUoa 
nstll tbe7 bare declared tbemmlrea onable to agree. 

(2.) Same. 

Where after the Jurr In a murder trial bad dellberatad leM 
than five bonre the presiding Justice, of his own motion and with- 
out prerlons conanltatlon with the defendant or his connsel and 
without their being aware of bis purpose, called the Jury Into 
court, asked If they had agreed on a verdict, and, on recelTlng a 
negative answer, discharged them, the defendant cannot be tried 
again tOr the same offense as he has been once placed In Jeopardr- 

(S.) Twioi iiT Jbopabdt— Code Cam. Pro. Sk. 428. 

The fact that the defendant and his counsel, though present, In- 
terposed no objection to the discharge of the jury, hut remained 
Ment. does not show that the defendant consented thereto within 
the meaning of section 428 of the Ck>de of Criminal Frocednre. 


As the Jmr was Improperlr discharged after having been dulr 
sworn and charged, such discharge was In law the equivalent 
of an acquittal of the defendant 

(B.) Bake— DKRHnAHT hat Obtajh Duchabox bt Habxab Cobpus. 
The question of defendant's right to a discharge from custody 
under the dreumstances may be raised and tested on habeas 



corpua proomdlngi, tor It is a ptm qneatlon of Uw Tbere all the 
bcti appear either of record or are conceded br gtlpulatloo. 

(e.) Same. 

Where It la shown on habeas corptu proceeding that the dis- 
charge of the ]nr7 was onwarranted, and that this was equivalent 
to an acqnlttal, the relator shonld be released from custody. 

Appeal by The People of the State of New York from an 
order of the Supreme Court, made at the New York Special 
Term and entered in the office of the clerk of the county of New 
York on the 7th day of April, 1910, as reflcttled and amended 
by an order entered on the 11th day of April, 1910, Bustaining 
a writ of habeas corpiu and discharging the relator from 

Robert C. Taylor of counsel [Robert 8. Johnstone with him 
on the brief], Charles 3. Whitman, District Attorney, for the 

Austen O. Fox [^Mosea H. Orossman and Leo R. Brilles of 
counsel], Herman Joseph and Augustin Derby, attorneys, for 
the respondent. 

Cl^BE£, J. ; 

Kelator was indicted for murder in the first degree and before 
a jury duly impaneled waa tried in the Court of General 
Sessions, the trial beginning on the 7th day of itarch, 1910. 
On the fourteenth of March the jury was duly charged by the 
court and retired for deliberation at five-fift«en o'clock p. m. 
At six-thirty p. u. the jury waa taken to dinner and returned 
therefrom at eight o'clock p. m. and resumed their deliberations. 
.At nine-twenty-two p. h. the jury was brought into court and 
further charged by the court and again retired for deliberation, 
not less than twenty minutes being occupied during said addi- 



tional charge. At ten-ten p. m. the jury was brought into court 
hj order of the court, without previous consnltation with the 
defendant or his counsel or without the defendant or his coonsel 
heiDg informed of the purpose thereof, and without the jury 
requBEting it, and, the jur; being in court, the following took 
place between the court and the jury. " The Court : Mr. Fore* 
man, have jou agreed upon a verdict t The Foreman : Xot as 
yet. The Court: Well, I am loath to keep you together any 
longer. You have been in session now for over five hoors and 
I have charged you as fully upon the law as I can charge yon. 
I do not see that there is any additional explanation of the law 
that I can give you. I discharge yon from further considera- 
tion of the case. Defendant remanded.** Thereupon the jury 
at once left the box and separated. 

Upon consent the minntes of the trial were amended to read 
as follows: " The jury at 10: 10 p. m. o*clod[ return to the bar 
and say that they have not as yet agreed upon a verdict. There- 
apon the public prosecutor and the defendant and his counsel 
being present and interposing no objection thereto, and in the 
opinion of the court a reasonable time having elapsed since the 
case was committed to the jury, and it appearing to the court 
that the jury are unable to agree upon a verdict, it is ordered, 
that the jury be and they hereby are discharged from further 
consideration of the case." 

The district attorney and the attorneys for the relator stipul- 
ated " that the aforesaid entry * « • fras not intended to 
mean that the counsel for the defendant were informed in ad- 
vance that the jury were to be discharged and were consulted 
with and consented in advance that the jury be discharged, but 
was intended to mean that after the jury had been discharged 
no objection was interposed nor exception taken on the record, 
hut the said coonsel remained silent" 

The relator having been remanded to the custody of the 
warden of the city prison, a writ of habeas corpus was granted 



by a justice of the Supreme Court, and upon the return and the 
traverse thereto relator waa discharged from custody and the 
People appeal. 

Section 42S of the Code of Criminal Procedure provides that 
" After the jury have retired to consider of their verdict they 
can be discharged before they shall agreed thereon only in the 
following cases: 1. Upon the oocurrence of some injury or 
casualty affecting the defendant, the jury or some one of them, 
or the court, rendering it inexpedient to keep them longer 
together ; or, 2. When, after the lapse of such time as shall 
seem reasonable to the court, they shall declare themselves 
nnable to agree upon a verdict ; or, 3. When, with the leave of 
the court, the public prosecutor and the counsel for the defend- 
ant consent to such discharge." 

Lord Coke (1 Inst 227b; 3 Co. Litt. [2d Am. ed.] 393; 3 
Inst. 110) laid it down as a general rule that a jury sworn and 
charged by the court in cases of life or member, and so in all 
cases of felony, cannot be discharged by the court or any other, 
but tbey ought to give a verdict 

In 1801, Kekt, J., in People v. Olcott (2 Johns. Cas. 301), 
demonstrated that this statement of the common law had not the 
support of any cases, and established the rule for this State as 
follows: " If the court are satisfied that the jury have made 
long and unavailing efforts to agree; that they are so far 
exhausted as to be incapable of further discussion and delibera- 
tion, this becomes a case of necessity and requires an inter- 
ference. All the authorities admit that when any juror be- 
comes mentally disabled by sickness or intoxication, it is proper 
to discharge the jury; and whether the mental inability be 
produced by sickness, fatigue or incurable prejudice, the ap- 
plication of the principle must be the same." In that case the 
jury had been unable to agree and had been dischai^ed. The 
prisoner having been brought into court by habeas corpus, a 
motion was made that he should be discharged upon the ground 



that having been ooce put upon bis trial and the jury having 
been discharged by the court, against the consent of the prisoner, 
he could not be again brought to triaL The court refused to 
discharge him. 

In People T. Ooodwin (18 Johns. 187) the prisoner had been 
indicted and tried at the General Sessions for manslaughter. 
Tbe jory reported that there tvbs not the slightest possibility 
of their agreeing and were thereupon discharged by the court. 
The chief justice of the Supreme Court had admitted him to 
baiL Pursuant to his rect^izance he had appeared at the May 
term of the Supreme Court. The district attorney stated that 
the only question was whether the prisoner was again to be pnt 
npon his trial under tbe indictment Hoffman, for the pris- 
oner, then moved for his discharge on the ground that once 
having been tried he could not legally be put on trial a second 
time. Tbe matter was very carefully considered. Spsrcbb, 
Ch. J., writing the opinion, said inter alia: " The teat by which 
to decide whether a person has been once tried is perfectly 
familiar to every lawyer — it can only be by a plea of avierfois 
acquit or a plea of avierfoit convict. • • • To render the 
plea of a former acquittal a bar, it must be a legal acquittal by 
judgment upon a trial for substantially the same offense and 
the verdict of a petit jury. * * * In the present case it is 
not pretended that the prisoner has been acquitted, unless tbe 
discharge of tbe jury, without having agreed npon their verdict, 
and without the prisoner's consent, shall amount, in judgment 
of law, to an acquittal. This brings us to the question whether 
tbe Court of Sessions could discharge the jury under the circum- 
stances of this case. If they could not, then I should be of the 
opinion that, although there could be no technical plea of 
auterfoia acquit, the same matter mi^t be moved in arrest of 
judgment ; and, if so, I can see no objection to tbe discussion of 
the question in its present shape, on a motion to discharge the 
prisoner. * * * Upon the whole, I am of opinion that 



whenever, in cases of felony, a jaiy baa deliberated so long npon 
B prisoner's case as to preclude all reasonable expectation tliat 
tbey will agree on a verdict without being compelled to do so 
from famine or exhaustion, then it becomes a case of necessity, 
and thej may be discharged, and the prisoner may be again 

It is unnecessary to cite further, because prior to the enact- 
ment of the Code of Criminal Procedure the rule was well 
established that the discharge of the jury, when they were 
unable to agree, in the exercise of the discretion of the court, 
did not result in the discharge of the prisoner; that under such 
circumstancea he was not considered to have been in jeopardy 
and there was no bar to a second trial. The provisions of the 
Code cited supra now r^ulate and control the subject. It has 
been he]d that all matters pertaining to criminal procedure are 
now embraced in and covered by the Code of Criminal Pro- 
cedure. (People V. Hovejf, 92 N, Y. 554 j People v. Bissert, 
n App. Div. 118; affd., 172 N. T. 643; People v. Olen, 173 
id. 395; People ex rel. Jerome v. Court of General Sessions, 
112 App. Div. 424; affd., 185 N. Y. 504; Matter of Mont- 
gomery, 126 App. Div. 72; appeal dismissed, 193 N. Y. 659.) 

The questions here arising are four: I- Was the coort 
warranted in discharging the jury before they had declared 
themselves unable to agree upon a verdict ? 2. Can the defend- 
ant be considered to have consented to the discharge of the jury t 

3, Is the effect of such discharge equivalent to an acquittal ; and 

4. Can the question be raised and tested in habeas corpus 
proceedings t 

1. I am of the opinion that the court unwarrantably inter- 
fered with the deliberations of the jury; that the statute has 
made the test, announced the rule and fixed the limitations of 
the exercise of the discretion of the judge, and that it can be 
exercised only when the jury shall declare themselves unable 
to agree npon a verdict The court is not required to disdiai^ 



them at once when tbej bare 80 declared, because discretion is 
to be exercised under first part of the 2d subdivision of the 
section, " When, after the lapse of auch time as shall seem 
reasonable to the court." He ma; send them back and may 
keep them together for so long a time as in the exercise of a wise 
discretion be may deem reasonable, but he may not dischai^ 
them of his own motion until they have declared tbemseWea 
unable to agree. This is the rule established by the Legislature 
and it is a reasonable rule, otherwise the court might 
capriciously or for improper motives interfere to prevent a 
verdict which might otherwise bare been arrived at. " If a 
Court has the right, during the trial, capriciously to discharge 
the jury, and continue the cause until the next term, the liberty 
of those indicted for ofienses not bailable would be completely 
within the hands of the judge." (Wright v. State, 5 Ind. 
290.) The People and the defendant are alike entitled to the 
uninterrupted deliberation of the jury. The declaration that 
they are unable to agree must proceed in the first instance from 
that body itself. 

2. I do not think that the failure to object to the discharge of 
the jury can be interpreted to be the consent provided for in the 
3d subdivision of the section, to wit, " When with the leave of 
the court, the public prosecutor and the counsel for the defend- 
ant consent to such discharge." As is well said by Chief 
Justice McIvBB of the Supreme Court of South Carolina, in 
State V. Richardson (47 S. C. 166; 25 S. E. Rep. 220) : " Con- 
sent is active, while not objecting is merely passive. The old 
adage ' Silence gives consent ' is not true in law ; for there it 
only applies where there is some duty or obligation to speak. 
(State V. Edwards, 13 S. C. 80; State v. Senn, 32 S. C. 401.) 
If it had appeared in the ' Case/ as it does not, that the 
prisoner was asked whether he objected to the motion to with- 
draw the case from the jury, and he said no, or had even re- 
mained silent, then the result would have been different As 



it was, however, we think it would be going too far to hold that 
he consented to a withdrawal of the case." (See, also, Ex parte 
Glenn, 111 Fed. Rep. 257.) In this case the court said: "It 
is contended that, the prisoner in this case not objecting to the 
discharge of the jury, ber silence was a waiver upon her part of 
the action of the court in diacbarging it. I do not think sa 
It is a well-aettled principle of law that a prisoner may stand 
mute. It is for the state to make out its case against the 
prisoner, and the prisnoer is not compelled to do anything that 
will aid the state in its prosecution. In this case at the time 
the jury was discharged the prisoner merely stood mute." In 
Rohinaon v. Commonwealth (88 Ky. 386; 11 S. W. Rep. 210) 
the Court of Appeals of Eentncky said : " It would be exceed- 
ingly dangerous to leave this organic right to rest, for its proper 
protection, upon the mere will, or even discretion, of the trial 
court, however pure and elevated the judicial character mig^t 
be; and no interference by the State, after the jury has charge 
of the case, can be tolerated unless upon facts establishing a case 
of necessity or by consent of the accused. * * * In this 
instance, however, there was no express consent by the appellant 
to the discharge of the jury, nor any circumstances from which 
a consent can be properly implied. He was merely silent. 
The rule should not be extended so far as to require him, for the 
protection of this organic right, to object to the action of the 

3. If the jury was improperly discharged after having been 
sworn and charged with the defendant, I take it there is no 
doubt that said dischai^ was in law the equivalent of an 
acquittal. In People v. Barrett (2 Gaines, 304) the with- 
drawal of a juror and attempting to subject a person to a 
second trial because the prosecutor was not prepared with his 
proofs, was held to be the equivalent to an acquittal. 

In Grant v. People (4 Park. Or. Rep. 527) the Clinton Gen- 
eral Term, Roseckans, J., said : " In the case now before to, 



the special plea exclades the existence of anj oecessit;, and all 
grounds for the exercise of the discretion of the court. It 
alleges that the jury was * discharged without disagreeing or 
other special cause, hut by mere insularity,' and this was done 
without the consent of the defendant. In Mahala v. The State 
(10 Yerg. B. 632), the Supreme Court of Tennessee held that 
there -was no power to discharge a jury in a criminal case with- 
out the consent of the defendant, except in cases of manifest 
necessity. When the jury are unwarrantably discharged, it is 
equivalent to an acquittal The law, to warrant the discharge 
of the jury, must be one erf uncontrollable emergency. « » * 
The arbitrary discharge of a jury in a criminal case, against 
the consent of a defendant, without any cause, and where no 
circumstances exist calling for the exercise of the discretion of 
the court (which is the case presented by the special plea of the 
defendant) is a bar to a subsequent trial of the defendant upon 
the same indictment. {Comnumwealth v. Cook, 6 Serg. & 
Eawle, 577 ; State v. Ephraim, 2 Dev. & Bat 162 ; 2 Gr. & Wat. 
on New Trials, 106, 106 * * *.) In the case of The 
United States v. Pedro Oibert (2 Sunm. K. 60), Mr. Justice 
Stobt approves of the doctrine of the Supreme Court of Penn- 
sylrania and North Carolina, which hold that the provision 
of the Conatitution of the United States, which declares that 
no person shall be subject for the same offense to be twice put 
in jeopardy of life or limb, includes cases where a party is 
once put upon his trial before the jury, and they are discharged 
from giving a verdict without extreme necessity, and he adds : 
' This too ia the clear, determinate and well settled doctrine 
of the common law, acting upon the same principle, as a funda- 
mental rule of criminal jurisprudence.' " 

In King v. People (6 Hun, 297) the court said : " A prisoner 
is once in jeopardy when he has been arraigned and pleaded to 
a valid indictment, a jury has been sworn, and evidence given, 



and then, without his consent, a juror has been withdrawn or 
(which 18 the same thing) the jury discharged." 

In People v. Jones (48 Mich. 554), a murder case, Coolbt, 
J., said: " The plea of former acquittal shows no verdict, but it 
shows that a jury was empanelled, and that the proeecution 
went into proofs by witnesses until they rested their case. 
Under aJl the authorities this entitled defendant to a verdict 
one way or the other, and if the jury was discharged without 
verdict and without any overruling necessity, this was a final 
discharge of the accused." 

In 12 Cyc 270 it is said : " If the jury are discharged for a 
reason legally insufficient and without an absolute necessity for 
it, the discharge is equivalent to an acquittal, and may be 
pleaded as a bar to a subsequent indictment," citing numerous 
authorities from the State and Federal courts. 

In 17 American and English Encycloptedia of Law, 1261, it 
is said : " It is generally agreed that the discharge of the jury in 
a criminal case, in the absence of circumstances rendering it 
proper for the court to exercise a discretion in that behalf, will 
operate as an acquittal of the defendant." 

4. Can the question be raised on habeas corpus ? I think it 
can. It is a pure question of law. The facts appear of record 
and are stipulated and conceded. 

I am aware that it is stated in the text books and in the 
digests that the writ will not lie. In Spelling on Extraordinary 
Relief (Vol. 2, p. 1012) is the following: ** ' Once in jeopardy ' 
is matter of defense upon a subsequent trial for the same 
offense. Where there has been a legal jeopardy, it is equivalent 
to a verdict of acquittal, and on motion the prisoner is entitled 
to his discharge ; but the writ of habeas corpus wilt not lie." 

And in Church on Habeas Corpus, 325, it is stated : " And 
conceding that the court erred in discharging the jury, and that 
the alleged error was cognizable in a <K)urt of review, it could 
not be reviewed without the record if the cause was properly 



before the court of review, in such a way u to give it a reviflory 
power nnder its appellate jurisdiction. But such an error is a 
mere irregularity, and should not be reviewed under this writ. 
It does not affect the question of jurisdiction, and where a court 
has jurisdiction, it is within its power and authority, and is 
clearly its duty, to entertain, hear, and determine every ques- 
tion that may possibly or legitimately arise during the progress 
of the trial to final judgment of conviction or acquittal" 

In 21 Cyc. 305 it is said : " The defense of former jeopardy 
or of former acquittal or conviction does not entitle tbe prisoner 
to be discharged on habeas corpus," citing cases. The one New 
York case is People V. Rulloff (3 Park. Cr. Rep. 126). That 
was a Special Term decision by Balcoh, J., in 1856. 

It is true that section 332 of the Code of Criminal Procedure 
provides that : " There are three kinds of pleas to an indict- 
ment : 1. A plea of guilty. 3. A plea of not guilty. 3. A 
plea of a former judgment of conviction or acquittal of the 
crime charged, which may be pleaded either with or without 
the plea of not guilty." Section 840 provides that : " If the 
defendant were formerly acquitted on tbe ground of a variance 
between the indictment and tbe proof, or tbe indictment were 
dismissed upon an objection to its form or substance, without 
a judgment of acquittal, it is not deemed an acquittal of the 
same offense." And section 341 provides that: "When, how- 
ever, the defendant was acquitted on the merits, he is deemed 
acquitted of the same offense, notwithstanding a defect in form 
or substance in the indictment on which be was acquitted." 

But an appeal lies in a criminal case only from a final judg- 
ment (Code Crim. Proo. §§ 516-517.) In People v. Oood- 
win (supra) it was said: "To render tbe plea of a former 
acquittal a bar, it must be a legal acquittal by judgment upon a 
trial for substantially tbe same offense and the verdict of a petit 
jury." If that be so, it would seem that the facts in this case 
would not support the plea of avterfoia acquit, provided for ia 



the section of the Code of Criminal Procedure cited Bupra, and 
in any event the defendant would be required to remain in 
prison and to stand another trial before he could raise the 
question, and if decided against him, test it upon appesl from 
the final jugment. I do not believe that under such circum- 
stances a Special Term case, decided before the adoption of the 
Code or cases in other jurisdictions, should bind us. 

The relator is asserting a constitutional right In Ex parte 
Davis (48 Tex. Crim. Rep. 644; 89 S. W. Eep. 878) the Court 
of Criminal Appeals of Texas had before it an application for 
a vrit of habeas corpus for the release of the applicant who 
stood charged with the offense of murder in one county of the 
State, he having been acquitted upon a trial upon an indictment 
found by the grand jury of another county of the State for the 
same crime. The court said : " The question presented for 
our consideration is, does the verdict and judgment of acquittal, 
rendered in the District Court of Coke County, esonerat« relator 
from further prosecution in the District Court of Nolan County 
for the same offense? In the first place, the jurisdiction of 
this court to interfere by writ of habeas corpus is questioned, it 
being insisted that applicant can fully protect his rights by an 
appeal,. • * • The only way we know to avoid a second 
trial, where the lower court is proceeding with said trial, is to 
interpose the writ of habeas corpus," and the writ was issued 
and the prisoner discharged. 

In Hans Nielsen, Petitioner, (131 17. S. 176), Mr. Justice 
Baadlbt, speaking for the Supreme Court of the United States, 
said : " The first question to be considered ia whether, if the 
petitioner's position was true, that he had been convicted twice 
for the same offense, and that the court erred in its decision, he 
could have relief by habeas corpus? The objection to the 
remedy of habeas corpus, of course, would be that there was in 
force a regular judgment of conviction, which could not be 
questioned collaterally, as it would have to be on habeas corpus. 



* * * In tbe present ease, it is true, tbe ground for the 
babesa corpna was not the inTiliditj of an act of Congress under 
whicb the defendant was indicted, bat a second prosecution and 
trial for the same offense, contrary to an express provision of 
the Constitution. In othra- words, a constitutional immunity 
of the defendant was violated b; the second trial and judgment. 
It is difficult to see why a conviction and punishment under 
an unconstitutional law is more violative of a person's consti- 
tutional rights than an unconstitutional conviction and punish- 
ment under a valid law." Referring to the case of Matter of 
Snow (120 U. S. 274) the court said: "He was protected by 
a constitutional provision, securing to him a fundamental right. 
It was not a case of mere error in law, but a case of denying to 
a person a constitutional rig^L And where such a case appears 
on the record, the party is entitled to be discharged from im- 
prisonment. * * * A party is entitled to a habeas corpus 
not merely where the court is without jurisdiction of the cause, 
bat where it has no constitntional authority or power to con- 
demn the prisoner. * * * And why should not such a rule 
prevail in favorem Itbertatiat If we have seemed to hold the 
contrary in any case, it has been from inadvertence." 

The question was raised by habeas corpus before Kent, 3., 
109 years ago in People v. Olcott {supra) without a suggestion 
that such course was improper. And in People v. Goodwin 
(supra), where the prisoner was indicted at the General Ses- 
sions, and the question was raised io the Supreme Court upon a 
motion for hie discharge on the ground that once having been 
tried be could not legally be pat on trial a second time, the 
court, by Spenobk, Ch. J., said: "This brings us to the 
question whether the Court of Sessions could discharge the jury 
under the circumstances of this case. If they could not, then 
I should be of the opinion that, although there could be no 
technical plea of auierfois acquit, the same matter mig^t be 
moved in arrest of judgment ; and, if so, I can see no objection 



to the discussion of the qnestioD in its present shape, on a 
motion to discharge the prisoner." 

If the discharge of the jury was unwarranted, and if an 
unwarranted discharge of the jury is the eqaivalent of an 
acquittal, then it most follow that the relator is illegally and in 
violation of his constitutional rights deprived of his liberty. 
Assaming that he had been acquitted by a verdict of the jury, 
and, nevertheless, the court had remanded him to the custody 
of the warden of the city prison, can any one doubt that the 
Supreme Court, upon such facts being brought to its attention, 
would instantly release him upon a writ ? If I am right, that 
is the precise legal situation here existing. 

We have not overlooked the recent case of People ex rel. 
Scharff v. FroH (198 N. Y. 110; 34 N. Y. Crim. 388). In 
that case a statute (Penal Code, § 385) provided that "the 
subsequent intermarriage of the parties * • • is a bar to 
a prosecution for a violation of the last section " (seduction 
under promise of marriage). After a plea of guilty and before 
judgment the relator had married the prosecutrix and sentence 
had been suspended. Long afterwards the suspension of 
sentence was revoked and the relator sentenced to State's prison. 
The Court of Appeals unanimously held that the marriage 
operated as a bar to the rendition of judgment and it became 
the duty of the court to discharge the relator from custody and 
proceed no further in the prosecution and that it was error 
to pronounce judgment against him, but the court said : " The 
relator's remedy was to move in arrest of judgment and upon 
the denial of that motion, if it were denied, he could review 
the action of the trial court upon appeal. There was not, how- 
ever, such an utter lack of jurisdiction or power to pronounce 
judgment as entitled the relator to relief by habeas corpus." 

There was a strong dissent, concurred in by three of the 
judges, holding that habeas corpus would lie, stating: "The 
court should not adjudge itself incompetent to deal with a 



nmple Bituation calling for relief from an illegal jodicial set 
through the aid of the moet powerful and effective remedy 
known to statute or common law." 

We are, of course, bound by the law as laid down by the 
Court of Appeals and most apply it to similar cases. But in 
the Schatf case a statute was under consideration. In the 
present case a constitutional immunity. " No person shall be 
subject to be twice put in jeopardy for the same offense " 
(Const, art. 1, § 6), and the language of the Supreme Court of 
the United States in the Nielsen Case (supra) covers this case : 
" A party is entitled to a habeas corpus not merely where the 
court is without jurisdiction of the cause, but where it has no 
constitutional authority or power to condemn the prisoner." 

The order appealed from sustaining the writ and discharging 
the relator should be affirmed. 

IlTOBAHAl^ P. J., LaDOHUIT, SgOTT aud MiLLBB, 3J., COtt- 


IlfOBAHAU, P. J. : 

I fully concur with Mr. Justice Clabke and simply wish to 
add a few words as to whether this question can be raised on 
habeas corpus. Upon the return to this writ the question 
presented to the Supreme Court is whether the relator was 
illegally detaiued in custody. Section 2031 of the Code of 
Civil Procedure provides that "the court or judge, before 
which or whom a prisoner is brought by virtue of a writ of 
habeas corpus, issued as prescribed in this article, must, im> 
mediately after the return of the writ, examine into the facts 
allied in the return, and into the cause of the imprisonment 
or restraint of the prisoner; and must make a final order to 
discharge him therefrom, if no lawful cause for the imprison- 
ment or restraint, or for the continuance thereof, is shown; 
whether the same was upon a commitment for an actual or 



Bupposed criminal matter, or for some other cause." If it 
appears, therefore^ that the relator is restrained of his liberty, 
and no lawful cause for the imprisonment or restraint or for 
the continuance thereof is shown, he must be discharged. 

The return shows that the relator is imprisoned under a 
warrant of the Court of General Sessions of the Peace based 
upon an indictment against him for the crime of murder in the 
first degree. As a traverse to this return it appeared that the 
relator had been tried upon that indictment and the jury dis- 
charged without a verdict or without stating that they were 
unable to agree, and as established by Mr. Justice Clabke in 
his opinion such a discharge of the jury was equivalent to an 
acquittal. The question before ns, therefore, is whether a 
defendant having been committed to prison upon a bench 
warrant issued under an indictment is illegally restrained under 
such a warrant after he has been tried upon the indictment and 
acquitted. We are not reviewing a judgment of the court con- 
victing the defendant after he had been acquitted. It may be 
assumed that where there was a final judgment or decree of a 
competent tribunal of civil or criminal jurisdiction and a 
prisoner was held under such a judgment that he could only 
review that judgment upon an appeal therefrom and not by a 
writ of habeas corpus tmder subdivision 2 of section 2032 of the 
Code of Civil Procedure. But here the defendant is held under 
a warrant issued by the Court of General Sessions based upon 
an indictment upon which a trial has been had subsequent to 
the commitment and the defendant in effect acquitted. After 
such an acquittal there was certainly no lawful cause for the 
continued imprisonment of the relator baaed upon the original 
warrant which had been issued on the indictment. In the case 
of People ex rel. Scharff v. Frost (188 N. Y. 110; 24 N. T. 
Crim. 388) the relator was held under a judgment of the 
Court of General Sessions, a court of competent jurisdiction. 
And it was held that in soch a case the judgment standing 



nnrevened the validity of the judgment coald not be detennined 
apoD habeas corpus. But here the relator is held under a 
warrant based npon an indictment upon which a trial has been 
had and tbe relator acquitted, and the defendant claims to hold 
the relator upon that warrant and that warrant talj. Since 
tbe acquittal there has been no adjudication by tbe court that 
the relator should be continued in imprisonment nor is he 
held upon any process of any court issued after bis trial, and 
assuming that the discharge of the jury was equivalent to an 
acqnittal I think the case is clearly brought within section 
2031 of the Code of Civil Frooednre and tbe relator is entitled 
to his discharge. 

Order affirmed. 



J11I7 12> IBIO. 


(139 App. DiT. 814.) 

(1.) Labcbtit — Sau or Ttmbcb Cut on Statk Pkuebtb. 

One emptoyed br the Forest, Fleb and Oame Commlaaton to 
protect a portion of tbe forest preserve ovned by the State, 
wbo through agents and employees cuts timber from the preserve 
and Mils It to third parties, falsely stating that It Is sold on 
bebalf of the State, and who receives over $7,000 as his part of tbe 
proceeds, Is properly convicted of grand larceny In the flrat 

(2.) Saud— SccH Tbexs are Propbbtt. 

Trees standing upon the forest preserve are property wlthla 
the meaning of the statute governing larceny, although the Con- 
stitution provides tbat such lands shall be forever occupied as 
wild lands, and that timber shall not be sold or removed there- 

Nor can such timber be deemed property without value because 
of said constitutional provision. 

Appeal by the defendant, Harvey N. Gaylord, from a judg- 
ment of the County Court of Herkimer county, rendered againat 
him on the 3d day of February, 1908, convicting him of the 
crime of grand larceny in the first degree after a trial before a 

The defendant and one Charles A. Klock were indicted by 
the grand jury of Herkimer county at a Trial Term of the 
Supreme Court held in and for aaid county in December, 1907, 
for the crime of grand larceny, first degree, in that they, as 
alleged in aaid indictment, at the town of Witmurt, in the 
cotinty of Herkimer, in or about the month of Kay, 1905, with 



force and arms, then and there wrongfully, nulavfully and 
feloniously, did obtain, appropriate, steal, take and carry away 
from the possession of the State of New York and the People 
of the State of New York, the true owners thereof, 50,000 
spruce logs of the value of $20,000, with the felonious intent 
on the part of the defendant and of Charles A. Klock, then 
and there wrongfully, unlawfully and feloniously to deprive 
the said People of the State of New York and the said State 
of New York, the true owners thereof, of the said property and 
of the use and benefit thereof, and to appropriate the same to 
their own benefit and use, and did steal the same, the said logs 
being then and theretofore growing trees belonging to the State 
of New York and to the people thereof, and a part of the realty 
and lands belonging to the said State, and then and there 
situate, and theretofore wrongfully and feloniously cut and 
severed from said real estate, then and there situate in the 
town of Wilmnrt aforesaid, and with the felonious intent upon 
their part after severing the same to take, steal and carry the 
same away from the said land and to appropriate the same to 
their own use and benefit, to the great damage of the State of 
New York and of the people thereof, contrary to the form of 
the statute in such case made and provided. 

In the second count of the indictment is practically reiterated 
the charges set forth in the first count, and it is alleged, in 
substance, that such wrongful and felonious acts were com- 
mitted by the defendants through their agents, servants and 
employees, and with the same intent and purpose on the part of 
the said defendants as in the first count alleged. 

The indictment so found was duly sent to the Herkimer 
County Court for trial at a Trial Term of such court, and on 
the let day of February, 1908, the defendant Harvey N. Gay- 
lord was placed upon trial upon the charges alleged in the 
indictment aforesaid, and as a result of such trial the defendant 
Gaylord was found guilty as charged in the indictment, and ' 



thereupon he was sentenced to be confined at hard labor in the 
State prison at Auburn, If. Y., for a term of not less than 
one year and not more than three yean and sis months. 

The validity of the verdict of guilty and the judgment of 
conviction entered thereon is challenged upon the grounds: 

1. That trees standing on lands vithiu the forest preserve, 
such lands belonging to the State, are not property within the 
meaning of the statute defining grand larceny, and that crime 
cannot be predicated upon the cutting and taking of such treea 
and logs therefrom. 

2. That the logs which were the anbject of the allied larceny 
were not of the value of $500 or more. 

3. That the evidence received was incompetent to establish 
the value of the logs which, as alleged, by the organic law of the 
land, are not merchantable, and could not be sold in the 

4. That the evidence in this case only establisbea the com- 
mission of a misdemeanor by the defendant, and that his con- 
viction as for the crime of grand larceny was unwarranted. 

It is also urged that the verdict against the appellant rests 
upon the uncorroborated testimony of accomplices, and, there- 
fore, cannot stand. Other questions are raised relating to 
certain statements made by the district attorney in summing 
up to the jury and the court's refusal to charge as requested by 
the defendant's counsel in respect to the force of the proof of the 
good character of the defendant 

H, M. WiVmr [R. A. De Coster and A. M. MiUt of counsel], 
for the appellant 

Frank I Schmidt, District Attomejf, and CiarUs D. Thomas, 
for the respondent 

McLeritait, p. J. : 

The evidence eetablisbee beyond doubt that the defendant 



and one Charles A. Elock were in the employ of the Forest, 
Fiah and Game Commiasion of the State of New York during 
all the time mentioned in the indictment and were thus engaged 
to watch, patrol and protect a portion of the forest preserve of 
the State of New York located in the town of Wilmurt, county 
of Herkimer. The cba^ iei, in aubstance, that the defendant 
acting in concert with Charles A. Klock, cot or caused to be cut 
50,000 spruce logs, of the value of $20,000, on such lands and 
belon^ng to the State, and being a part of its forest preserve. 
The evidence tends to show that in the fall of 1904 the defend- 
ant had a conversation with one George Vincent, a jobber and 
lumberman, in reference to cntiiog some timber upon the forest 
preserve in said town of Wilmurt, and that in pursuance of the 
arrangement made with the defendant, Vincent cut in the fall 
of 1004 about 500 logs on said premises. The evidence tends to 
show that the defendant represented to Vincent that the State 
of New York was entering upon a plan of cutting all the 
timber, exceeding ten inches in diameter, on the tract in ques- 
tion, and that he, the defendant, wanted Vincent to do such 
cutting, and the defendant stated to Vincent according to the 
evidence that the timber so cut was to be sold to other parties 
and that the other parties so buying the timber cut wouJd pay 
him (Vincent) for the cutting. In pursuance of such talk 
or agreement or representations made by the defendant, Vincent 
commenced cutting such timber in May, 1005, and continued up 
to the 2d of August, 1905, and employed for such purpose 
twelve to ei^teen men, until he was stopped by the officials of 
the Forest, Fish and Game Commission, and at the time Vin- 
cent was stopped by snch action of the said authorities he bad 
cut down 50,000 thirteen-foot 1<^, which were the equivalent 
of about 5,000 cords of pulpwood, and had drawn and put in 
the skid 26,000 logs, or a little more than half of the cutting. 
After the defendant had made arrangements with Vincent to 
cnt the said timber he went to Forreetport and there saw 



Jamea Gallsgher, a iBmberman having a sawmill, and also 
Albert Harrig, a member of the firm of Syphert & Hairig, who 
were also owners of a sawmill located at Foirestport, N, Y., 
and the defendant falsely stated to them that the State of New 
York was to make an experiment in forestry and had deter- 
mined to cut the timber down to ten inches on the stunp and 
see what effect it would have on the small timber; that they 
would sell it at one dollar and fif^ cents a cord, and after some 
negotiations the defendant made a contract with Gallagher to 
take about 3,000 cords, end with Harrig to take aboat 3,500 
cords. At the time the arrangementa were made with Gallagher 
and Harrig to take the logs which bad been cut npon said land, 
he stated that it would be necessary for them to pay a small 
judgment and to consent to a complaint made by him as one of 
the inspectors of the Forest, Fish and Game Commission prac- 
tically in order that the State department should not be thua 
apprised of the actual conditions which were going on and 
being consummated under the direction of the defendant. And 
such complaints and arrests thereunder having been made and 
all the parties having been fined practically under the direction 
of the defendant, the unlawful and wicked scheme devised by 
the defendant to procure to be cut and to be sold the trees and 
logs belonging to the State was carried into effect and con- 

The evidence tends to show that the timber was cut by the 
defendant's agent and employee, James Vincent; that the 
defendant profited and benefited by the transactiim together 
with his accomplice, Klock, the other defendant, by receiving 
$7,750 in cash, and that the timber belonged to the State of 
New York ; that the defendant had no right to cut, sell or re- 
move the same, or procure the same to be cut or removed. 

The facts in plain English are that the defendant and Klock, 
who were employed by the State to patrol and protect its forest 
preserve and see that its timber waa not wasted or despoiled, 



entered into an understanding, contract or arrangement, no 
matter which, by which they permitted Vincent to cnt down 
the trees in question ; that they then made arrangements with 
James Gallagher and Harrig by which such persons should 
receive the trees and timber so cut at a certain price, they 
agreeing to pay Vincent for the cost of the cutting. Under the 
directions of the defendant such timber over which he was in 
charge as agent or custodian of the State was permitted to be 
cut by Vincent, was by him sold to Gallagher and Harrig, 
they agreeing to pay Vincent for the cost of cutting, and as 
a result there was paid over to the defendant and Elock the sum 
of $7,750, Harrig paying $4,000 and Gallagher paying 
$3,7S0, and they gave receipts therefor, which money the proofs 
show was never turned over to the State department but was 
kept and retained by the defendant and his codefendant, Klock, 

Upon the facts as thus stated, and practically proven without 
contradiction, it would seem that the defendant was guilty of 
larceny in the first degree, provided the value of the timber or 
Ic^ thus sold by him exceeded the sum of $500. If this was a 
charge against a defendant, the complainant being one of the 
citizens of the State, it would hardly seem possible that under 
the facts here presented such defendant would not be guilty of 
the crime of larceny. In the case at bar the defendant was 
placed in charge and made the custodian of the property in 
question. He assumed unlawfully and without any authority 
to give another the right to cut down such timber and then 
assumed to sell to auother party or parties such timber so cut, 
the defendant himself receiving the value of such lumber. 

It seems to us that in the ordinary sense such action on the 
part of the defendant would amount to larceny in the first 
d^ree, provided the value of the timber thus sold by him was 
of sufficient amount. But it is urged, in suhetance, that the 
trees, timber and logs upon the forest preserve of the State are 
not property within the meaning of the larceny statute. (See 



Penal Code, § 526 et aeq.) This ia urged beeaose of tlie provi- 
Bions of the amended Constitution which provide that " The 
lands of the State, now owned or hereafter acquired, constitut- 
ing the forest preserve as now fixed hj law, shall be forever 
kept as wild forest lands. They shall not be leased, sold or 
exchanged, or be taken by any corporation, public or private, 
nor shall the timber thereon be sold, removed or destroyed." 
(N. T. Const art 7, § 7.) 

It seems clear that by such constitutional provision it was not 
intended that the State might be despoiled of its property any 
more than any other citizen and that the larceny statute protects 
it (the State) as to its lands the same as any of its citizens. 
The State of New York has spent millions of dollars to acquire 
its forest preserve. It was purchased from private individuals, 
and when title vested in the State it had commercial value and 
all the attributes of property. It is inconceivable that the con- 
stitutional amendment or provision prohibiting the sale of such 
land has divested it of its property attribute. 

The same suggestion applies to the point urged by appellant's 
counsel that the property taken was without value, because it 
had been deprived of its value by reason of the fact that the 
Legislature had prevented its sale in the market. It had an 
intrinsic value. Such intrinsic value was in the State, and it is 
idle to say, as it seems to me, that it had no value because by 
the Constitution of the State it was provided that it could not be 
sold in the market. 

It would seem unnecessary to go further into a discussicm of 
the facts in this case or of the law applicable thereto. The 
defendant, as clearly established by the evidence, while engaged 
to protect the forest preserve of the State, entered upon a 
scheme by which another should cut a large number of trees 
upon such preserve and by which still another should purchase 
such trees illegally cut or illegally authorized to be cut by the 
defendant, and that as a result of such contract of purchase 



the defendant received between $3,000 and $4,000 for hia 
agreement to permit the cutting and the delivery of the treea 
or logs to the third parties, which he was chained with the duty 
of protecting. In other words, the defendant assumed to Bell 
the property of the State, assumed to procure it to be put iu 
proper and saitable condition for sale and delivery. It was 80 
cat; it was so put tinder bis direction into suitable condition 
for delivery; it was delivered, and there was paid as the result 
of such transaction $7,750 to the defendant and hia associate, 
Charles A. Kloek. 

It seems to me that these facts were amply supported and 
corroborated by the evidence of the witnesses John Bellinger, 
Anthony Coleman, Napoleon Biron, Arthur Lavoy and Daniel 
Patterson. While Vincent, Gallagher and Harrig may possibly 
be regarded as accomplices, the witnesses just referred to cannot 
be so classified. 

It seems to me that the other question raised, that the district 
attorney made improper remarks in his address to the jury, waa 
properly taken care of by the remarks and charge of the court. 

It is further concluded that there was no reversible error 
committed by the court in refusing to chaige as requested by the 
defendant's counsel 

I conclude that the judgment entered upon the verdict of the 
jury of guilty should be affirmed. 

All concurred. 

Judgment affirmed. 


It la a Bttttutory criminal ottense In man? atatea. People v. Chrbh 
UaD, 144 Htcb. 247; State v. Shavlln, 99 Hlnn. 168; State v. Dorman, 
9 a D. 148. 

One who par* money to a State Oame Protector lor loga cut on 
State lands constltuttnc part of tlie foreat preserve Is chargeable with 



knowledge of tlie want of anOiorltr In the game protector to recelTe 
ft, and ttie latter's assertion of hU right to do so la not a fraudulent 
repreeentatlon of a fact (or which he can be Indicted tor grand lar- 
ceny. People T. Klock, 66 Misc. 46. 

TlmlMr upon State lands Is the subject of larceny notwithstanding 
the constitutional provision forbidding the sale of land In the forest 
preserve and the timber thereon. People v. Gallagher, 68 Mlsc 616. 

Cutting or removing timber from any of the Public Lands of the 
United States is Indictable, although the land la not reserved for 
naval pari>OBee. U. 8. T. Redy, 27 Fed. Caa. 16, 133. 

The only Intent neceaaary to be shown la the Intent to export or 
dispose of the timber. Teller v. U. S. 133 Fed. 273. 

The United States Is a person within the meaning of a state 
Statute making It an offense to cut down. Injure, destroy or take or 
remove any tree, timber, rails, or wood standing, being, or growing 
on the lands of any other person. State v. Herold, 9 Kan. 184. 

Under Michigan Statute it Is a felony to enter upon atate tax home- 
stead lands and cut timber therefrom or to induce or direct another 
to do BO, and an Intent to commit a trespass Is not neceaaary to com- 
plete the oSenae. People v. Christian, 144 Mich. 247. 

The Hlnnesota Statute declaring cutting or removing timber from 
state lands a crime. Imposing a penalty, and Bxlng the meaaure of 
damages In a civil action. Imposes on a casual or Involuntary treo- 
paaser criminal punishment and also double damages for hie wrong- 
ful act Such statute held not obnoxious to constitutional principles. 
State V. Shevlln, 99 Minn. 168. 

The South Dakota statute does not require that the offense shall 
be knowingly committed, and It la therefore no defenae that the 
defendant did not know that the land from which he removed the 
timber was school land. State v. Dorman, 9 8. D. 628. 




J11I7 ae, leio. 


<1>9 App. DlT. 7»6.) 

(1.) Rape— Aoi or Cokbcnt. 

Sexual InterconiBe with a woman below the statutory m» of 
eonaent is rape whether accomplished by force or not 

In a prosecution for rape there can be no conviction on the un- 
corroborated testimony of the complainant. 


While the People In a prosecution for rape may show that the 
Tlcttm complained of the occurrence, they cannot, on a direct 
examination either of the complainant or of the person to whom 
the complaint was made, prove the details of the complaint. 

(4.) Sahs. 

In a prosecuUon for rape It Is error to allow the mother of the 
cmnplatnant to testify to details of the crime as stated by the 
complainant the morning after It was committed. 

Appeal by the defendant, Samuel Friedmiin, from a judg- 
ment of the County Court of Kings county, rendered againBt 
him on the 18th day of March, 1908. 

E. P. Seelman, for the appellant. 

Peter P. Bmiih, Assistant District Attorney, and John F. 
Clarke, District Attorney, for the respondent. 

See ante, p. 1, also Note, Vol. 24-7. 



Cabb, J.: 

This is an appeal from a judgment of tbe County Court of 
Kings county, hj which the defendant was adjudged guilty of 
the crime of rape in the second d^ree and sentenced to prison 
for an indeterminate sentence of a minimum of five years 
and six months and a maximum of nine years and six months. 
The victim of the alleged rape was a girl of ahout fifteen 
years of age. As she was below the statutory age of consent 
(Penal Code, § 278), sexual intercourse with her constituted 
the crime of rape, whether it was accomplished with force or 
not. It was quite satisfactorily shown that someone had sexual 
intercourse with the girl near the time of the commiBsion of the 
alleged crime. The girl testified that the defendant was the 
individual The statute (Penal Code, § 283), however, pro- 
vides that no conviction for rape can he had upon the unsup- 
ported testimony of the complainant. This provision of the 
statute ie derived from the common law, and has been applied 
for centuries. As has heen said frequently, it has its origin 
in the fact that crimes of this nature are easily charged and 
very diiBcult to disprove, in view of the instinctive horror with 
which mankind regards them. The rules of law and procedure 
governing the trial of a defendant on a charge of this character 
have been so long settled that there is little excuse when they 
are violated. As some proof tending to support the charge of 
the complainant, the People are permitted to prove that the 
alleged victim of the crime promptly made some outcry at or 
after the commission of the crime, or made some complaint as 
to its commission. Evidence of this nature being hearsay in its 
character, the rule which makes it admissible, at the same time, 
surrounds its reception with well-defined safeguards. While 
the prosecution may show that the victim made a complaint 
of the occurrence, it cannot, on direct examination either of the 
complainant or of the person to whom the complaint was made, 
prove the details of the complaint (Baeeio v. People, 41 IT. T. 



S65.) In tbe case at bar the proaecution gave evidence on the 
part of the mother of the complainant, on the next morning 
after the commission of the alleged crime; and. over the objec- 
tion and exception of the defendant, the mother was permitted 
to testify to the details of the girl's story as to the manner in 
which the crime was committed. This manner of proof is 
precisely what was condemned in Baeeio v. People {eupra), 
where tbe admission of similar evidence led to tbe reversal of a 
judgment of conviction. No matter bow great our horror as to 
tbe crime of rape, tbe law mnst always be kept in mind sharply, 
and all tbe more so becaase of tbe strong temptation either to 
convict or to sustain a conviction. 

The judgment of conviction of the Connty Conrt should be 
reversed, and s new trial ordered. 

HiBsoHBXBQ, P. J., WooDWASD, BoBB and RiOH, JJ., can- 

Judgment of conviction of the County Conrt of Kings ooon^ 
reversed, and ■ new trial ordered. 




Sept. SI. leio. 


(140 App. Div. 96.) 

(1.) Appeal — Fbok Spzgiu. Sesbiors. 

On ttpi>eali from convlctioiis In Courta of Special Seaeiona and 
by msKlBtratea and police Juatlcea, oalr rach erron will be con- 
■Iderad as are apeclfled In tbe aflldaTlt upon wblcb tbe appeal li 

<S.) Keefino Bawdy Hocss uf Plattsbuioh. 

Defendants, arrested In tbe city of Plattabnrgb as disorderly 
persons becaiue of keeping a disorderly bouse contrary to section 
139 of the charter of said city, were tried before the city Judse 
acting OS tbe magistrate of a Coart of Special Sessions with a 
Jury of six men. The affldavlt upon which the appeal was allowed 
did not allege this manner of trial as error, but only that they 
were not permitted to give ball to await the action of the grand 
iurr. Held, whether tbe trial was had before a proper court will 
not be Inquired Into. 

HouoHTon, J., dissented, with opinion. 

Appeal by the defendautB, Antoine Schemo and another, 
from a judgment of the Coiinty Court of Clinton county, 
rendered on the 15th day of September, IdOd, affirming a 
judgment of tbe City Court of the city of Plattsbargb, rendered 
on the 26tb day of July, 1909, convicting the defendants of 
being disorderly persons. 

John E. Judge, for tbe appellants. 

Arthur 8. Hogtte, District Attorney, for the respondent 

See Note, Vol. 2S-eOE. 



Feb CmUAH : 

An information wrb presented to the city judge of the city of 
Plattsburgh charging that on the 22d day of July, 1909, at 
said city, the defendants committed " the crime of misdemeanor, 
to-unt, in being a disorderly person as defined by § 139 of chap. 
369, Laws of 1902, in that at the said time and place the said 
defta. did keep a disorderly bonse " and so concertedly kept 
and maintained the same for one year prior thereto. A warrant 
was issued and the defendants were arraigned and advised 
of their rights to have coonsel and to have an examination and 
to plea guilty or not guilty, and were also informed that they 
had the right to a jury trial. The defendants insisted that the 
court had no jurisdiction to try the offense of which they were 
charged, and stated that they desired to waive examination and 
to give bail to await the action of the grand jury. The court 
held that he had jurisdiction to tiy the offense and that the 
defendants were not entitled to give bail to await the action 
of the grand jury, and told the defendants that they might 
have a jury impaneled if they bo desired. A jary was im- 
paneled and it rendered a verdict of guilty, and the defendants 
were each sentenced to the Albany County Penitentiary for the 
period of three months, and in addition to pay a fine of fifty 
dollars and stand committed until paid. After such conviction 
and sentence the attorney for the defendants presented an 
affidavit to a justice of this court, as prescribed by sections 748 
to 763 of the Code of Criminal Procedure, for an allowance of 
an appeal to the County Court of Clinton county, which was 
granted, and on such appeal the conviction was affirmed, and 
the defendants now appeal to this court. The affidavit upon 
which the appeal was allowed states that the defendants were 
convicted of the crime of misdemeanor, to-wit, being disorderly 
persons in that they and each of them did within said city of 
Plattsburgh keep and maintain a disorderly house, and the 
errors complained of are that the defendants were not permitted 



to waive examination and give bail to appear before the grand 
juiy of the county, because the court had no jurisdiction to try 
the offense of which they were charged, the same being triable, 
if at all, after indictment by a common-law jury of twelve men; 
and, further, that the district attorney who appeared in behalf 
of the prosecution was permitted in summing up to go outside 
the record and make statements prejudicial to the defendants. 

It is the settled practice that on appeals from convictions in 
Courts of Special Sessions and by magistratee and police jus- 
tices only such errors will be considered as are specified in the 
affidavit upon which the appeal is allowed. (People v. Jewett, 
69 Hun, 550; People v. McOann, 43 id. 55; People ex reL 
Baker v. Beatty. 39 id. 476.) 

The remarks made by the district attorney in summing up to 
the jury were not of such a character as to require a reversal of 
the judgment and conviction. 

The defendants were not entitled to waive examination and 
give bail to appear before the grand jury on the charge of com- 
mitting the misdemeanor of being disorderly persons in the city 
of Plattsbur^ or to have such charge made against them 
presented by indictment and tried by a common-law jury of 
twelve men. The charter of the city of Plattsborgh (Laws of 
1902, chap. 369) creates a city judge and eatablishes a City 
Court. Sections 138 and 139 define the jurisdiction of the city 
judge in criminal matters. Section 139 contains a long list of 
acts prohibited within the city of Flattsubui^ such as keeping 
disorderly houses, public intoxication, riotous conduct, loiter- 
ing, disturbance of public meeting^ defacing buildings or city 
property, horse racing and the like, the doing of which is de- 
clared to make one a disorderly person. The section oondndes 
in the following language : " Every person found guilty of 
being a disorderly person as aforesaid, and every person guilty 
of any act or acts making such person a disorderly person as 
herein declared, shall be guilty of a misdemeanor, and on con- 



viction thereof punialied bb in this act provided." The section 
further provides that when any person chained or complained 
against as a diaorderlj person shall be arrested or brought be- 
fore the city judge, be " shall proceed forthwith to hear, try 
and determine the complaint or charge on which such person 
is arrested," and on conviction the offender can be punished by 
a fine not exceeding fifty dollars, or by imprisonment in the 
county jail of Clinton county not exceeding six months, or by 
both such fine and imprisonment 

The aiBdavits upon which the appeal was allowed do not 
complain of the manner of trial of the defenders or allege that 
it was error for the city judge to organize a Court of Special 
Sessions with a jury of six men to try the defendants. The only 
ground of lack of jurisdiction set forth is that there was no 
jurisdiction at all, because the defendants were entitled to 
waive examination and give bail to appear before the grand 
jury. This they were manifestly not entitled to do. The 
affidavit upon which the appeal was allowed not setting forth 
any errors requiring a reversal of the conviction, it follows 
that it must be affirmed. 

All concurred, except Houqhton, J., dissenting, in opinion. 

HocaHTOiT, J. (dissenting) : 

I recognize it to be the rule that on appeals &om conviction 
in Courts of Special Sessions and by magistrates and police 
justices the errors set forth in the affidavit upon which the ap- 
peal is allowed are the only errors concerning which the court 
is required to make any return and the only errors which under 
ordinary circumstances the appellate court should consider. 
But where the return as made and presented to the appellate 
court shows that the trial was a nullity and had without any 
jurisdiction whatever it seems to me that the record cannot be 



ignored and the court should take cognizance of the fact that 
an appellant has been illegally convicted. 

There is some confusion in the record and dispute between 
counsel as to what crime was actually charged against the de- 
fendants and of what they were really convicted. The langnage 
of the information is that the defendants committed " the crime 
of misdemeanor, to-wit, in being a disorderly person as defined 
by § 139 of chap. 269, Laws of 1902, in that at the said time 
and place the said defts. did keep a disorderly bouse." The 
judgment of conviction contained in the record states that the 
defendants were convicted of keeping a " disorderly house^" 
and the learned district attorney insists that that was the charge 
made against them. The undertaking given by the defendants 
on the allowance of their appeal recites that they were each con- 
victed of being " a disorderly person," and their counsel in- 
sists that that was the only crime with which they were charged. 

The information clearly charged the defendants with "the 
misdemeanor of being disorderly persona in the city of Platts- 
burgh," and not with keeping a disorderly house. Of this mis- 
demeanor in being a disorderly person in the city of Flatte- 
burgh, the city judge sitting as a magistrate alone, without the 
impaneling of a jury, has jurisdiction to hear and determine. 
There is a broad distinction between a Court of Special Sessions 
composed of a magistrate and a jury of six men and a magis- 
trate's court held by a magistrate alone. It was such a magis- 
trate's court only which the city judge was authorized to hold 
in disposing of the charge made against the defendants. 

Section 139 of the charter makes the person who does the acts 
prohibited a disorderly person and declares that if he shall be 
found guilty of being a disorderly person because he has com- 
mitted those prohibited acts he shall be deeoned guilty of a mis- 
demeanor and on conviction punished as the act provides. The 
same section further provides that one charged with being a 
disorderly person shall be arrested and brought before the city 



jadge wlio shall proceed forthwith to hear, try and determine 
the complaint or charge on which said person ia arrested. 

It aeems to me it was clearly the intention of the Legislature 
to confer power upon the city judge as a magistrate to som- 
marily try persona who were chained with committing the acts 
the doing of which made them disorderly persons, and to deprive 
the persons so charged of a trial hy a Special Sessions jury of 
six men. 

Section 138, which will be hereafter referred to, aathorizes 
the city judge to hold a Court of Special Sessions for the trial 
of certain enumerated offenses. For the offenses specified, how- 
ever, in section 139 he has no authority to hold a Court of 
Special Sessions bat must act as magistrate alone without the 
aid of a jury. It was competent for the Legislature to confer 
snch power of snmmary trial upon him as a magistrate with 
respect to the offenses enamerated, notwithstanding the fact 
that the persons guilty of the disorderly acts are declared to he 
guilty of a misdemeanor. There was no invasion of the right of 
the citizen to a trial by jury, for the provision of article 1, sec- 
tion 2, of the Constitution relating to such right, refers to the 
common-law jury of twelve men and has no application to the 
trial of petty offenses and such misdemeanors as are triable by 
a Court of Special Sessions. {People ex rel. Murray v. Jut- 
tices, 74 N. Y. 406.) It was not until 1824 that the Legisla- 
ture permitted a jury of six men as now allowed by section 706 
of the Code of Criminal Procedure, on the trial of a misde- 
meanor in a Court of Special Sessions. (See Laws of 1824, 
chap. 238, § 47.) From Colonial times there has always been 
a class of persons known as vagrants or disorderly persons, who, 
have been dealt with summarily before inferior magistrates 
and to whom the right of trial by jury was not granted. By 
the act of July 27, 1721, it was provided that " idle and necea- 
eitous persons " who had come into the province from neighbor- 
ing provinces and plantations to escape punishment for their 



crimes or the payment of their debts and were likely to make 
charge and trouble to the placea into which they had come, 
should be summarily dealt with by the mayor or justices of 
the peace, and transported or punished in case they were unable 
to give bonds. (2 Colonial Laws of New Tork [Comp. Stat 
Kev. Comm.], 56, chap. 410.) The keeping of a bawdy house 
was a misdemeanor at common law and as early as the first 
Kcviscd Statutes such keeper together with fortune tellers, c(»n- 
moD prostitutes, common gamesters, and those who threatened 
to abandon their wives and children and leave them a burden 
on the public were denominated disorderly persons. (B. S. pt. 
1, chap. 20, tit. 5, § 1.) It is within the power of the Legislature 
to add to this list of disorderly persons by including those who 
are guilty of acts tending to disturb the public peace and wel- 
fare and also to provide that they be summarily tried before a 
magistrate. (People v. McCarthy, 45 How. Pr, 97; Duffy v. 
People, 6 Hill, 75.) By the act of 1873 (Chap. 357) any pro- 
fessional thief or pickpocket who had been previously convisted 
of that crime who was found loitering around any railroad 
depot, hotel or other pnblic place was declared to be a disorderly 
person, and upon proof of his former conviction and that he was 
so loitering for an unlawful purpose a magistrate was given 
power to sentence him to the penitentiary or county jail for 
the period of 100 days. It was expressly held in People V. 
McCarthy {supra) that such act was constitutional. So, too, 
by section 17 of chapter 628 of the Laws of 1857 (as amd. by 
Laws of 1869, chap. 856) any person found intoxicated in a 
public place might be arrested and taken before a magistrate 
whose duty it was declared to be to forthwith try him for the 
otFense and on conviction to impose a prescribed fine, and in 
default of payment a prescribed term of imprisonment. In 
People v. Bvrleigh (1 N. T. Cr. Rep. 532) the right of the 
L^slature to direct a trial of this offense before a magistrate 
alone, as distinguished from a trial in a Court of Special 8e»- 



flions with a jury of six, was epecifically passed upon and it 
-was held that the Legialature had such right and that the law 
was not contrary to the Conatitntion. Chapter 187 of the Laws 
of 1881 (aa amd. by Laws of 1887, chap. 17) provided that all 
jofitices of the peace, police justices and other magistrates out- 
side of the counties of iN'ew York and Kings, might sentence 
and commit all females between the ages of fifteen and thirty 
years who had been convicted of petit larceny, habitual drunken- 
ness, or of being common prostitutes, or frequenters of dis- 
orderly hotises to the House of Refuge for Women at Hudson 
for a term of not more than five years, and the power thus 
given was upheld in People ex rel. Duntz v. Coon (67 Hun, 

The denial of the ri^t of the magistrate to try and sentence 
in People ex rel. Frank v. Davia (80 App. Div. 448) was upon 
the ground that authority had not been clearly given by the 

Article 6, section 18, of the Constitution provides that the 
L^slature may establish inferior local courts of civil and 
criminal jurisdiction not greater, however, than County Courts 
poflsess ; and from the foregoing authorities it secsna clear that 
it can also confer upon magistrates sitting as such the ri^t to 
hear and determine summarily such minor misdemeanors and 
offensea as it sees fit The Legislature also had the right to 
malie it a misdemeanor to be a disorderly person in the city of 
Flattsburgh altbou^ it was not a crime to be such a person in 
another part of the State. (People ex rel. Smith v. Van De 
Carr, 86 App. Div. 9; 17, N. T. Crim. 465.) 

By section 139 of the charter of the city of Flattsbur^ the 
Legislature did confer npon the city judge sitting as a magis- 
trate jurisdiction to proceed summarily to try persons charged 
with the misdemeanor of being a disorderly person because of 
tbe commission of the acts prohibited in such section. 

The city judge, therefore, had jurisdiction as magistrate to 



ixj tbe defendants for the offense cha^d agsloBt them, bat he 
did not have jurisdiction to organize a Court of Special Ses- 
sions with a jury to try them, and their conviction in such a 
court was a nullity. 

Tbe return states that the defendants were "tried by the 
court and a jury and by said jury convicted and sentenced by 
court." There is no pretense in the return that the magistrate 
exercised his own judgment in convicting the defendants. The 
fair interpretation of his return is that he relied wholly npoD 
the verdict of the jury and followed it without exercising judg- 
ment on his part, by pronouncing sentence. 

The defendants ooold not confer jurisdiction upon the Court 
of Special Sessions by accepting a jury if such court had no 
jurisdiction to try them. 

Because the return affirmatively shows that the defendants 
were tried by a court having no jurisdiction, notwithstanding 
the error is not pointed oat in the affidavit allowing tbe appeal, 
I think the judgment of conviction should be reversed and a 
new trial had in the proper tribunal. 

Judgment of conviction affirmed. 



Oot. 4, leio. 


<1» N. T. 166.) 

(1.) iivuf^t-JamuoirxKKT or DtwDmun worn JnooimiT— Derhduit 

mtar u oitkh OPTcwTDitriT to Show Cadsk wht Jvwamn 

SHOUUI MOT BB Fbohoohckd aoaihbt Hih. 

Under tbe common lav and b7 statute (Code Cr. Pro. | 480) 

It la neceosaiT In capital cases that a defendant be aaked before 

■entence, whether he has anr legal cause to show why Jadgment 

should not be pronounced against him, and the failure to ask this 

qneatlon of the defendant In this case, after his conviction under 

the erroneous charge therein, constitutes reversible error. 

Qvaere, however, whether the proceedings can be remitted to the 

trial court to enable it to proceed according to law. 

It Is reversible error, upon the trial of a defendant, charged 
with the crime of murder In the first degree, tor the trial court 
to refuse to charge that " while It la the duty of each Juror to 
discuss and consider the opinion of others he must decide the 
case upon his own opinion of the evidence and upon his own jiidg< 
ment; " and to charge. Instead thereof, "the Juror should Join 
with his co-Jnrars, and should make In some respects their 
opinion his own," and " If, after discussing with his fellow-Jurors, 
he changes his mind, It la Just what he ought to do, If he can. 
I shall not advise a Juryman to make himself a standard for 
everybody else. Tou never could accomplish anything that way." 

It Is competent for a person offering an expert as a witness, 
tar the pnrpoee of showing the strength of the opinion which 
be Is about to express, to specify In detail the observations upon 
which the oplnlos la bused. It Is of course competent for the 



opposite partr on croM-euunlnatlon to call for the obMrraUon*, 
and probe the anderlylog tads to the fulleit extent for the pur- 
pose of thus aSectlns, bo far ai poMlble, the strength of th« 
opinion expressed or to form a baata upon which other experts 
may be aaked to contradict or explain the opinion first exprened. 
But It ia not legal error to permit a medical expert, who has 
made a peraona] examination of a patient for the purpose of 
determining hla mental condition, to give his opinion as to that 
condition, at the time of the examination, without in the flrat 
inatance dlacloalng the particular facta upon vhlch the opinion la 

(4.) JtTBOBB. 

Duties and reaponstbllittea of Jurora, under proper direction 
from the court, conaldered and paased upon. 

Appeal from a judgment of the Supreme Court, rendered 
July 10, 1909, at a Trial Term for the county of Warren, upon 
a verdict convicting the defendant of the crime of murder in 
the first degree. 

The facte, so far aa material, are stated in the opinion. 

3. Edward Singleton for appellant. The expert witnesses 
sworn on behalf of the People were erroncoualy allowed to ex- 
press their opinions as to the sanity of defendant without first 
giving the facts on which the opinion was based. (People v. 
Trwic, 170 N. Y. 203; People v. Nino, 149 N. Y. 317.) 
The trial court erroneously charged the jury that while it is 
the duty of each juror to discuss and consider the opinion of 
others, he must decide the case upon his own opinion of the evi- 
dence and upon his own judgment (People v. Sheldon, 156 
N. Y. 268.) 

John H. Cunningham for respondent. The evidence fully 
justified the verdict, and the verdict is in accordance with the 
weight of the evidence. (People v. Sutherland, 154 N. Y. 
350 ; People v. Farmer, 194 N. Y. 251 ; People v. Flantgan, 



174 N. Y. 356; People v. Johraon, 110 N. T. 134; People v. 
Hunter, 184 N. Y. 243.) There was no error in any ruling 
relating to the reception of expert testimony. (People v. Ste- 
wart, 148 N. Y. 571 ; People v. Lake, 12 N. Y. 358.) It ia not 
legal error to permit a medical expert, who has made a personal 
examination of a person for the purpose of determining his 
mental condition, to give an opinion as to that condition at the 
time of the examination without, in the £rst instance, disclosing 
the particular facts upon which the opinion is based . (People 
V. Youngt, 151 N. Y. 210; People v. Krist, 168 N. Y. 33.) 

ChasEj J. The defendant has been convicted of the crime 
of murder in the firat degree. It is not denied that he shot 
and killed Maud Bumps, otherwise known as Maud Ryan. It 
is contended on behalf of the defendant that the evidence of 
premeditation and deliberation is not sufficient to sustain the 
jndgm^it rendered, and it is also contended in his behalf that 
the defendant at the time of the commission of the act was 
laboring under such a defect of reason as not to know the nature 
and quality of the act he was doinj^ or that the act was wrong. 

We have fully examined the record and are of the opinion 
that the judgment shonld not be reversed as a matter of fact, 
but that the trial judge erred in his charge in relation to the 
duties of jurors. At the close of the main charge the defend- 
ant's counsel made a request to the court to charge, and the 
record of the request, the rulings of the court, and the excep- 
tions to the rulings are as follows : 

" Defendant's Counsel : I ask your honor to charge the jury 
that while it is the duty of each juror to discuss and consider 
the opinion of others he most decide the case upon his own opin- 
ion of the evidence and upon his own judgment. 

" The Court : I shall not tell them that. I shall tell the 
juror that he should join with his co-jurors, and should make 
ia some respects their opinion his own. 



" Defendant's Counsel : I except. 

" The Court : If, after diecuasing with Ma fellow-jurora, he 
changes bis mind, it is just what he ought to do, if he can. I 
shall advise a juryman to make himself a standard for eveiy- 
body else. Yon never could accwnplish anything that way. 

" Defendant's Counsel: I except to the refusal of the court 
to charge as requested and to the charge as made." 

The request of the defendant's counsel was a correct state- 
ment of the duty of jnrors, and it should have been charged. 
The defendant had been tried before a previous jury and they 
had failed to agree. The trial judge, in his apparent desire to 
have the jury agree, inadvertently overlooked the independent, 
individual and personal character of jurors composing the body 
who sit to determine controversies. An approval of the charge 
would make it a precedent. We cannot disapprove the charge 
and at the same time affirm the judgment, because if a juror, 
in compliance with the direction of the court, made the opinion 
of the other jurors in some respects hia opinion, it may have 
resulted in an agreement by the jury where an agreement would 
not have been obtained if each juryman in obedience to bis right 
and duty had decided the ease upon bis own opinion of the 
evidence and upon his own judgment 

The verdict of a juror should be free and nntrammdled. In 
arriving at a verdict the judge presiding at the court must not 
attempt to coerce or compel the jury to agree upon a particular 
verdict, or any verdict. It was held in substance in People v. 
Sheldon (156 N. T. 268) that an attempt to drive the members 
of a jury into an agreement is beyond the power of the court, 
and that an obvious effort to effect such result demands a new 
trial, and in that case the authorities relating to the subject in 
this and other states were quite fully discussed. (See, also, 
Twifia V. Lehigh Valley B. R. Co., 61 App. Div. 286.) 

Urging a jury to an agreement contrary to the individual 
opinion and judgment of one of the jnrors may be coercion. 



The verdict of a jury sboold not be the general average of 
the views of its individual members but consensus of indi- 
vidual judgment. Every juror takes an oath that is indi- 
vidual, and that puts npon him as an individual the responsi- 
bility of correctly determining the matters snlMnitted. He is 
a member of the body of twelve men, but he acts individually 
and is alone answerable to hia conscience. 

Brewbb, J., in State v. Bydee (17 Kansas, 462) in giving 
^iressioD to the same thought said : " A verdict is the exprea- 
aion of the concurrence of individual judgments, rather than tho 
product of mixed thoughts. It is not the theory of jury trials, 
that the individual conclusions of the jurors should be added 
up, the sum divided by twelve, and the quotient declared the 
verdict, but that from the testimony each individaul juror 
should be led to the same conclusion; and this unanimoas con- 
clnsion of twelve difEerent minds is the certainty of fact sought 
in the law." 

In Brickwood Sackett Instructions, which quotes from the 
language of judges in their charges to jurors in different cases, 
it is said : " No juior from mere pride of opinion hastily 
formed or expressed should refuse to agree, nor, on the other 
hand, shoiild he surrender any conscientious views founded on 
the evidence. It is the duty of each juror to reason with his 
fellows concerning the facts, with an honest desire to arrive at 
the truth and with a view of arriving at a verdict It should 
be the object of all the jury to arrive at a common conclusion, 
and to that end to deliberate together with calmness. It is 
your duty to agree upon a verdict if that be possible, without a 
violation of conscientious convictions." (Myers v. State, 43, 
Fla. 500.) 

Again, quoting from Jackson v. State (91 Wis. 253), it is 
said: "It is the duty of each juryman, while the jury are 
deliberating npon their verdict, to give careful consideration 



to the views bis fellow-jniTmeti may have to present apon tba 
testimony in tlie case. He should not shut his ears, and stnb- 
bomly stand npon the position he first takes, regardless of what 
may he said by the other jurymen. It should be the object 
of all of you to arrire at a common conclusion, and to that end 
you should deliberate together with calmneB&" 

Again, quoting from Simon V. State (18 So. Rep. 732), it is 
said : " I will charge you that when you go into the jury room 
you may discuss the case together and compare notes and rea- 
son together, but before you make up your verdict you must 
make up in your own mind, without reference to the other 
jurors, whether or not the defendant is guilty and if guilty, the 
degree in which you are to find him guilty. In short, when 
men are jurors they sit here as individuals, so far as their 
individual verdict is concerned, and the juror should be gov- 
erned by his own conscience and not by the minds and con- 
sciences of his fellow-jurors." 

The importance of having a jury agree may properly be 
urged upon their attention. They may be requested not to take 
a position that is beyond further consideration, reasoning and 
argument as to the just determination of the issues between the 
parties. They may properly be warned against stubbornness 
and self-assertion. It is the duty of jurors to keep their minds 
open and free to every reasonable argument that may be pre- 
sented by their fellow-jurors that they may arrive at a verdict 
which justly answers the consciences of the individuals making 
up the jury. 

A juryman should not have any pride of opinion, and should 
avoid hastily forming or expressing an opinion, but he should 
not surrender any conscientious views founded upon the evi- 
dence, unless convinced by his fellow-jurors of his error. So 
long as a further argument and comparison of views may aid 
in bringing about a unanimous verdict, jurors may properly be 
kept together to continue such comparison of views and state- 

ly Goc^lc 


ment of argument. After all the views of the several jurors 
are expressed and presented in the different forms, and individ- 
tial opinions of the jurors are fully and conscientiously made 
op, if they do not agree it is the duty of jurors to so report to 
the court and it is the duty of the court to discbarge them. 

It must not be overlooked that jurymen act as individuals 
and they must decide a case upon their own opinion and their 
own judgment and not merely acquiesce in the conclusions of 
others. Jurymen are not to make the opinion of their fel- 
lows tbeir own, except when in so doing they occur and ap- 
prove as well as acquiesce therein, and thereby fulfill the oath 
which they took upon entering the jury box. 

When the defendant appeared for judgment he was not asked 
by the clerk whether be had any legal cause to show why judg- 
ment should not be pronounced a^gainst him. The defendant 
was sentenced to the punishment of death within the time and 
by the means provided and required by law. The failure to ask 
the defendant whether he had any legal cause to show why judg- 
ment should not be pronounced against him was a serious 
error. It was indispensably necessary at common law in capital 
cases that a defendant should be asked before sentence if be had 
anything to say why sentence of death should not be pronounced 
against him and that this should appear of record. (1 Chitt. 
Cr. Law, 700; Barb. Cr. Law [2nd ed.], 370; Messner v. 
People 45 N. T. 1.) It is now made necessary by section 480 
of the Code of Criminal Procedure. 

In Messner v. People {supra) the record failed to show that 
the prisoner was asked after the verdict was rendered and be- 
fore judgment was pronoimced thereon what he had to say why 
judgment should not be pronounced against him and no oppor- 
tunity was given him by the court at that stage of the pro- 
ceeding for that purpose, and it was held that the omission was 
error for which there must be a new trial. Allen, J., con- 
curred in the reversal, but voted to remit the proceedings to the 



Court of Ojer and Termmer to ^ve judgment on the tKniTictioo. 

In Ball V. United States (140 U. S. 118) the courts say: 
*' At common law do judgment for corporal puniahment could be 
pronounced against a man in his absence, and in all capital 
felonies it was essential that it should appear of record that the 
defendant was asked before sentence if he bad anything to say 
why it should not be pronounced. • • * The forms of record are 
deeply seated in the foundations of the law ; and as tbey con- 
duce to safety and certainty, tbey surely ought not to be dis- 
regarded when the life of a human being is in qneation * * *." 
(P. 129.) 

It would be necessary, therefore, to reverse the judgment of 
conviction in this case even if we were not of the opinion that 
the trial court erred in directing the jurors in r^ard to their 
duties. It is not necessary for us to pass upon the question 
whether in case of a reversal based wholly upon the failure 
of the court to ask the defendant at the time he appeared for 
judgment whether he had any legal cause to show why judg- 
ment should not be pronounced against him, this court could, as 
su^iested by Judge in the Mestner case, remit the pro- 
ceedings to the trial court to give judgment on the conviction, 
unless the defendant upon being asked should give a legal cause 
why judgment should not be so pronounced against bim. 

It is unnecessary to consider the other alleged errors claimed 
in behalf of the defendant, as the questions so presented may 
not arise upon a new trial, except as to the contention of the 
defendant that the court erred iu allowing the admission of cer- 
tain opiinons as to the defendant's sanity which were ^ven 
by physicians who are skilled and experienced alienists, without 
requiring the prosecution to first disclose the personal conver- 
sations, observations and examinations upon which such experts 
severally based their opinions. 

It is claimed on behalf of the defendant that he was insane, 
and the determination of that question was of vital importanoe 



on the trial and may be of vital importaoce on a new triaL 
The court opon a new trial viU nndoubtetUj be called npon 
to rule Dpon similar qaesttona as to the admisaion of evidence, 
and we will consider snch ralings now, that the trial court maj 
hare the opinion of this court in r^ard thereto upon the new 

In the early history of the courts of England mere opinion 
evidence was wholly rejected. The admission of opinions as 
evidence by persons specisUy qualified by skill and experience 
to speak as experts has been a matter of development both in 
Bngland and in this country. The history of the admission 
of sDch evidence with illustrations from decisions of the courts 
is given by Wigmore in his exhaustive work on Evidence, and 
in connection therewith he refers to the practice of admitting 
opinion evidence by experts based npon observation, and con- 
cludes that evidence by experts of conceded skill and experience 
may be received when based upon the observation of the witness 
without in the first instance necessarily requiring that the facts 
observed be stated to the court and jury. In connection with 
his discussion of the question as to the admissibility of opinion 
evidence and of the early opposition to the admission of such 
evidence in any case^ he says : " It has already been seen in re- 
viewing the history of the doctrine, that in the beginning the 
disparagement of opinion rested on grounds totally different 
from those now received. It was objected to because as a mere 
gness, the relief of one having no good grounds, it lacked the 
testimonial qualification of observation ; hence, a mere opinion, 
as soon as it appeared to be such, must be rejected. In a few 
jurisdictions the modem doctrine has been confused with the 
earlier one, and it is laid down as a general rule that opinions 
must be accompanied with the facts on which they are based — 
uaoally with the exception that expert witnesses are exempted 
from this mie. 

" Now, in no aspect is this rule sound. In the first place. 



then, there is no principle and no orthodox practice which 
requires a witness having personal observation to state in ad- 
vance his observed data before he states his inferences from 
them; all that needs to appear in advance is that be had an 
opportunity to observe and did observe, whereupon it is 
proper for him to state his conclusions, leaving the detailed 
grounds to be drawn out on cross-examination. Any other rule 
cumbers seriously the examination, and amounts in effect to 
changing substantially the whole examination into a voir dire — 
an innovation on established methods wbich is unwarranted by 
policy." (Section 1922.) 

He further says: " All opinions or conclusions are in a sense 
hypothetical. But does it follow that, when the opinion comes 
from the same wiinesa who has learned the premises by 
actual observation those premises must be stated beforehand, 
hypothetically or otherwise, by him or to him? For example, 
the physician is asked, ' Did yon examine the body i ' ' Yes,' 
' State your opinion of the cause of death.' Is it here necessary 
that he should first state in detail the facts of his personal ob- 
servation, as premises, before he can give his opinion? In 
academic nicety, yes ; practically, no ; and for the simple reason 
that on cross-examination each and every detail of the appear- 
ances be observed will be brought out and thus associated with 
his general conclusion as the grounds for it, and the tribunal 
will understand that the rejection of these data will destroy 
the validity of his opinion. In the opposite case, where the 
witness baa not had personal observation of the premises, they 
are not to be got from him on cross-examination, because he had 
no data of personal observation ; and that is precisely the reason 
why they must be indicated and set out in the question to him, 
for thus only can the premises be clearly associated with the con- 
clusion based upon them. 

" Through failure to perceive this limitation, courts have 
sometimes sanctioned the requirement of an advance hypo- 



tbetical statement even where the expert witness speaks from 
personal obseiration." (Section 675.) 

There is a great difference in the deciaions of the courts of 
the states upon this subject, but it seems onnecessary to con- 
aider such authorities other than those of this state. We are 
in accord with the conclnsions reached by Mr, Wigmore in his 
work on Evidence and such conclosion is in accord with the 
weight of authority in this state. 

In People v. Ymmgs (151 N. T. 210; 11 N. Y. Crim. 546) 
the qaestion was directly before this court, and its determina- 
tion was essential to the disposition of the appeal. Evidence 
of the opinions of experts was received in that case without first 
requiring that the observations upon which such opinions were 
based be given in evidence. The judgment appealed from, by 
which the defendant had been sentenced to death, was affirmed, 
and this court said : " It appears by the record that certain med- 
ical experts were called as witneeses by the prosecution who 
testified that they had made a personal examination of the de- 
fendant with reference to his sanity, and were then asked 
whether in their opinion he was sane at the time of such ex- 
amination. These questions were objected to by the defense as 
incompetent, but the objection was overruled and there was an 
exception. It is now urged that these experts should not have 
been permitted to express an opinion, without first stating the 
facts upon which such opinion was based. The testimony of 
experts is an exception to the general rule which requires that 
the witness must state facta and not express opinions. In such 
cases the opinion of the witness may be based npon facts so 
exclusively within the domain of scientific or professional knowl- 
edge that their significance or force cannot be perceived by the 
jury, and it is because the facts are of such a character that they 
cannot be wei^ied or understood by the jury that the witness 
is permitted to give an opinion as to what they do or do not 
indicate. In soeh caaea it is the opinion of the witness that ig 



finpposed to possess peculiar volae for the information of the 
jury. Of course, all the facts or symptoms upoD which the 
opinion is based may be drawn out also, either upon the direct 
or cross-examinations. It is undoubtedly the better practice to 
require the witness to state the circumstances of his examina- 
tion and the facts, symptoms or indications upon which his 
conclusion is based before pying the opinion to the jury. But 
we think that it is not legal error to permit a medical expert 
who has made a personal examination of a patient for the pur- 
pose of determining bis mental condition, to give bis opinion as 
to that condition at the time of the examination, without in the 
first instance disclosing the particular facts upon which the 
opinion is based. The party calling the witness may un- 
doubtedly prove the facts upon which the opinion is based, and, 
as we have already observed, that is doubtless the safer practice. 
It may also be true that the court in the exercise of a sound 
discretion may require the witness to state the facts before ex- 
pressing the opinion, and in all cases the opposite party has the 
right to elicit the facts upon cross-examination. But the precise 
question here is whether the court committed an error in per- 
mitting the witness to give the opinion before the facts upon 
which it was founded were all disclosed, and we think that when 
it is shown that a medical expert has made the proper profes- 
sional examination of the patient in order to ascertain the 
existence of some physical or mental disease he is then qualified 
to express an opinion on the subject, though he may not yet 
have stated the scientific facta or external symptoms upon which 
it is based. (People v. Kemmler, 119 N. Y. 580; People v. 
Taylor, 138 N. T. 398 ; People v. Hoch, 150 N. T. 291 ; 11 
N. Y. Crim. 488.) " (P. 218.) 

The only cases in this court that have been called to our at- 
tention as authority for the contention that all of the facta 
observed by an expert upon which he bases his conclusion as 
to the sanity or insanity of a defendant must be laid before 



the jnry before the opinion is expressed are People v, Ntno 
(149 N. T. S17; 12 N. T. Crim. 228) and People v. Truck 
(170 K. Y. 203 ; 16 N. T. Crim. 342.) 

The jury are undoubtedly entitled to the facta on which an 
insanity expert basea his opinion, if the same are Boagfat by 
the prosecution or the defendant, and the language of this court 
in the Nino case is in no way opposed to the quotation from the 
opinion in the Younga case, except that the judge writing the 
opinion in the Nino case added to his statements in regard to 
the ri^t to present to the jury the facts upon which the insanity 
expert bases his opinion, the words : " It is not only competent, 
but necessary that they should be laid before the jury." This 
expression was not necessary to the discussion of the question 
then under consideration, and it was not considered binding 
upon this court in the Youngs case. 

In the Truck case the same judge, writing for this courts 
referred with approval to the opinion in the Nino case, but 
in that case the expressions used in connection with his refer- 
ence to the Nino case were not essential to the determination 
of that case, and, so far as there is anything in the expressions 
mentioned in either case, they should not be and are not now 
considered as binding upon this court as against the necessary 
and controlling determination of the court in the Youngs case. 
A witness to a will, although a non-expert may testify to 
the competency of the testator to make a will. In common 
practice in the courts a physician who has examined a patient 
is allowed to testify directly as to the disease from which the 
patient is suffering. There seems to be no good reason for re- 
quiring a physician to specify in detail his observations before 
expressing an opinion as to the sanity or insanity of a person 
examined by him any more than he should be required to re- 
count such observations in advance of expressing an opinion as 
to whether a person bad typhoid fever or was suffering from an 
epileptic fit 



As baa already been expresaed by otben, from wbich ex- 
pressions wo bare quoted, it ia competent for a person offering 
an expert as a witness for tbe purpose of abowing tbe strength 
of tbe opinion which he is about to express, to specify in detail 
the obeerrations upon wbich the opinion is based. It is of 
course competent for tbe opposite party on cross-examination 
to call for tbe obeervations, and probe tbe underlying facts 
to tbe fullest extent for tbe purpose of thus affecting, so far as 
possible, the strength of tbe opinion expressed or to form a basis 
upon wbich other experts may be asked to contradict or ex- 
plain the opinion first expressed. 

The trial did not err in allowing the physicians to express 
their opinions in regard to tbe sanity of the defendant without 
previously stating in detail the observations upon wbich the 
opinions were based. 

For the reasons stated tbe jadgment of conviction should be 
reversed and a new trial granted. 


33., concur ; Gbay, J., absent. 

Jadgment of conviction reversed, etc. 



Oct. IS 10. 


(69 HIM. SOS.) 

GiAHD Just — Nukbb Necxsbabt to Fird iNDicnmtr. 

Wbere eighteen grand jurors were present when the evldenoa 
wu taken and the vote bad upon the qneetlon of finding an In- 
dictment but onlr fifteen were present Including their foreman 
when the Indictment was presented to the court, the Indictment 
will be dlamlBsed on the ground that It was found br an Illegally 
constituted grand Jurr. but without prejudice to a reeubmlsBlon 
to another grand Jury. 

MoTioR to diBmiss AB. indictment on the ground that it was 
found by an illegally constituted grand jury. 

Morris 8. Ealliday, for People. 

Oeorge B. Davis, John D. Collins and Daniel Crowley, 
for defendant. 

SwsETLuUTD, J. At tbe September, 1910, term of the Su- 
preme Court beld in and for Tompkins county, tbe grand 
jury presented an indictment against tbe defendant, charging 
bim witb tbe crime of assault in tbe second degree. Tbe in- 
dictment was presented by tbe foreman of the grand jury to 
tbe court and there filed. A roll call of tbe grand jury then 
disclosed the fact that but fifteen grand jurors were in attend- 
ance, including the foreman. Tbe defendant was not present 
in court at that time> and an order was made by tbe Supreme 
Court sending the indictment to tbe County Court. Upcm 



airaigimient in Count; Court, the defendant appeared in per- 
son and hy counsel and moved for the dismissal of the in- 
dictment on the ground that it was not found b; a legally 
constituted grand jury; that the indictment was not found 
according to law; that it was found and presented when but 
fifteen members of the grand jury were present. Defendant 
asked that the indictment be dismissed and the defendant 
discharged imder authority of section 313 of the Code of Crim- 
inal Procedure. It was stated by the district attorney on the 
argument and not disputed that eighteen grand jurors were 
present when the evidence was produced and the vote of the 
grand jury taken, but that three of the eighteen departed for 
home before coming into court. The clerk's minutes do not 
show that any of the three absentees were excused. 

My attention has not been called to any case in which this 
question has been considered or decided. It is largely a ques- 
tion of statutory construction. There are but few cases in 
this State which directly aid in ita determination. 

Section 234 of the Code of Criminal Procedure, defining a 
grand jury, reads as follows: "The grand jury must consist 
of not less than sixteen and not more than twenty-three persons, 
and the presence of at least sixteen is necessary for the trans- 
action of any business." 

The record must show that the indictment was returned into 
court by the grand jury. 17 Am. & Eng. Ency. of Law, 1301. 
The grand jury as a body should return the indictments. They 
should not be carried info court by the foreman alone. State 
V. Bordeaux, 93 N. C. 560. 

Section 272 of the Code of Criminal Procedure reads as 
follows: "An indictment, when found by the grand jury, as 
prescribed in section two hundred and sixty-eight, must be 
presented by their foreman in their presence to the court, and 
must be filed with the clerk, and remain in his office as a public 
record, but it must not be shown to any person other than a 



pnblio officer, nntil the defendant has been arrested or has 

At common law a grand jury must consist of not less than 
twelve nor more tlian twenty-three persons. So many changes 
hava been made in this coantry from the common-law rule 
that the decisions of courts of other States are of but little 
value in determining questions arising under our statutes. 

" It has been held uniformly, it would seem, that where a 
grand jury is composed of more than the lawful number of 
members, it is not a legal body, and an indictment found by 
such body is not valid as against objection seasonably made." 
17 Am. & Eng. Ency. of Law, 1270. It was held in People 
T. King, 2 Caines, 98, that an indictment found by a grand 
jury composed of twenty-four persons was void. To the same 
effect is Sx parte Reynolds, 35 Tex. Cr. 437 ; Ogle v. State, 
43 Tex. 219 ; Downs v. Com., 92 Ky. 605. 

It is fair reasoning to hold, when one grand juror in ex- 
cess of the statutory number vitiates the indictment, as waa 
held in People v, Eing, 2 Caines, 98, that one leas than the 
statutory number is equally fatal. 

So we can say, both on reason and authority, " Lees than 
sixteen or more than twenty-three would not constitute a legal 
grand jury." Dawson v. People, 25 H". Y. 403; Joyce In- 
dictments, §§ 74, 173. 

The following cases are authorities for the proposition that, 
where fewer grand jurors are impaneled than the minimum 
number allowed by statute, the grand jury is not a lawful body. 
State V. Hawkins, 10 Ark. 71; Gladden v. State, 12 Fla. 562; 
State V. Symonds, 36 Maine, 128 ; Doyle v. State, 17 Ohio, 
222; Brannigan v. People, 3 Utah, 488; Dawson v. People, 
25 N. Y. 403. When the indictment was found by less than 
the minimum number of grand jurors, objection may be taken 
to it, even though it was concurred in by a sufficient number 



of grand jarors. State t. Hawking, 10 Ark. 71; Doyle v. 
State, 17 Ohio, 222. 

The statute under consideratioD ie highly penal and miut 
be strictly construed. Ita language is as clear and explicit 
as possible; and, if the words of the statute are to be given 
their usual and natural construction, the indictment is fatally 
defective. The defendant at the earliest possible opportunity 
properly raised his objection to the validity of the indictment. 
The indictment must stand or fall on the legal effect of the con- 
ceded facts of the case. 

All the legal requisites must be complied with to confer 
jurisdiction on the court in criminal matters. The defendant 
cannot by consent, in this case, confer jurisdiction on the court. 
Tfo person can by consent or stipulation constitute a legal 
grand jury. Where the law provides a method of acquiring 
jurisdiction of the person of a defendant, in a criminal action, 
as by indictment, that method must be strictly pursued to ac- 
quire jurisdictioiL See Davidsburgh v, Knickerbocker Life 
Ins. Co., 90 N. Y. 526. Unless the indictment was legally 
found and presented by a grand jury, it is invalid. The term 
" grand jury " as here used means a legal grand jury. Neither 
the defendant nor the prosecution ought to proceed further in 
this case unless the indictment is valid. If the procedure ia 
wrong, it is best to stop at the earliest opportunity and not go 
deeper into doubtful legal complications. 

The strictness of the rule of construction in criminal mat- 
ters ia well illustrated in Camcemi v. People, 18 N. Y. 128 
There the defendant was on trial for murder in the first de- 
gree; a jury of twelve men was duly impaneled and sworn 
and the trial had commenced, when one juror was withdrawn 
on the express consent and request of the defendant. The trial 
proceeded with eleven jurors and a verdict was rendered by 
them of guilty of murder in the first degree. The defendant, 
notwithstanding hia ctHisent and stipulation, appealed; and the 



judgment of conviction was reversed bj the Court of Appeals, 
because the defendant was not tried by a legal jury of twelve 
men. In People v. Shaw, 63 N. Y. 36, the trial was had, 
under the former practice, before a court, conBisting of a jus- 
tice of the Supreme Court, the county judge of the county and 
two juBticee of sesaions with a jury. The presiding justice 
and two others had power to hold the court, three couHtituting 
a quorum of the court One of the justices of sessions ab- 
sented himself for a vrhole day, and evidence was taken in his 
absence. The court was then legally constituted, because the 
presence of the three other members was sufScient, even though 
one justice of sessions had by his absence disqualified himself 
from further participation in the trial. He then returned and 
continued in the trial. After the charge of the court and the 
retirement of the jury, but before the verdict of the jury, the 
county judge left the court and did not return. The jury ren- 
dered a verdict of guilty. The conviction was reversed on 
appeal because a quorum of the court was not present through- 
out the trial. In People v. Bork, 96 N. T. 199, 2 N. T. 
CrioL 177, the rule is well stated in the following language: 
" It does not need the citation of authorities to the proposi- 
tion that judicial power can only be exercised according to 
law, and that an attempt by an unauthorized tribunal to render 
judgment involving life, liberty or property is a mere nullity. 
No man can be deprived of either without due process of law." 

The question involved in the three cases above cited arose 
on the trial, but they illustrate the firmness of the rule that 
no person shall be deprived of lif^ liberty or property except 
by due process of law. 

It seems that the reasoning in the Cancemi case, supra, 
holding a conviction fatally defective where the verdict of 
the jury was rendered by eleven jurors, one less than the 
l^al number, and in the Shaw cas^ supra, where the disquali- 
fication was caused by one of the three necessary members 



of the conrt retiring after tlie charge and before the rerdict, 
mufit be recognized and considered. 

The principle established in those cases and recognized in 
People V. Bork, 96 N. Y. 199, 2 N". Y. Crim. 177, cannot be 
disregarded. An indictment can only be found by due process 
of law. 

The grand jury is considered a useful and important part 
of our judicial system. It is of Anglo-Saxon origin, dating 
back to an early period of English history. Crabb Eng. Law, 
35 ; 4 Black Com. 302. For centuries it was regarded as one 
of the moat prized safeguards of the citizen against the en- 
croachments of governmental power. Time and altered condi- 
tions have wrought changes. The people have ceased to fear 
encroachments on their rights from the government. Now 
the great function of the grand jury is to protect innocent 
persons from unjust prosecution, to relieve timid complain- 
ants from responsibility and to indict upon production of 
proper evidence. The value of the grand jury is recognized 
and approved by the Constitutions and statutes of the United 
States and of most of our States. 

An able and interesting discussion of the grand jury sys- 
tem is contained in Ex parte Bain, 121 U. S. 10, also 2 Sawy. 

The grand jury system enables the individual to institute 
criminal prosecutions against offenders without official sanc- 
tion. The number of the grand jury being sufficiently large, 
and so distributed and selected as to furnish reasonable pro- 
tection against maliciotis and unfounded prosecutions on the 
one hand, and yet able to bring to trial in the proper court 
persons charged with crim^ on the production of legal evi- 
dence, to materially reduce the number of grand jurors would 
tend to impair the usefulness of the grand jury and lessen 
public confidence in the institution. It is a valuable safe- 
gaard and I believe ought to be preserved inviolate. To re- 



dace the required ntimber of grand jurors is a function of the 
l^;islative department of goreminent and not a function of the 
judicial department 

The law wisely provides a certain number as a grand jury 
quorum, in tbi» State sixteen, that number being necessary to 
transact any business. One of the most important parts of 
the business of the grand jury is the proper presentation of the 
indictments to the court The presence of as large a number as 
sixteen, on that occasion, is an almost perfect guaranty against 
fraud and improper practices tending to suppress or to un- 
justly present an indictment. We cannot disregard the im- 
perative words of section 224 of the Code of Criminal Pro- 
cedure which requires the presence of at least sixteen members 
of the grand jury to transact any business. The clear language 
of that section is not limited, modified or restricted by any 
decision. Less than sixteen persons caimot constitute a legal 
grand jury. 

The fact that eighteen grand jurors were duly summoned, 
sworn, heard the evidence, voted for the indictment; that the 
indictment was in due form, with the names of the witnesses 
thereon, signed by the district attorney and indorsed by the 
foreman, is not all that is necessary for a valid indictment 
It is not valid and not found until legally presented to the 
court It is the duty of each individual grand juror to see 
for himself that the work of the grand jury is completely and 
legally accomplished. This he does not do unless he is present 
and sees the indictment presented to the court by the foreman 
in the presence of the grand jury. An indictment is foimd 
when it is duly presented by the grand jury in open court and 
there received atid filed. Code Crim. Pro., § 144; see also 
§ 272 ; People v. Oiafaei, 20 Misc. Eep. 163 ; People v. Flarity, 
110 N. Y. Supp. 154; People v. Blake, 121 App. Div. 615. 

Applying the above definition, it seems the indictment in 
question was not legally found because leas than sixteen grand 



jurora were preoent in court at the time the indictment was 
presented. The indictment so foond and presented has no 
more legal effect than if the grand jury had never returned 
to court 

If fifteen grand jurors can present the indictment to the 
court, why not ten i Why not five i Why not one ? Why 
not send in the indictment by the foreman or district attorney i 

It seems to me, therefore, that the presentation of the in- 
dictments to the court is a part of the business of the grand 
jury and of each member thereof; and, unless there be present 
at least sixteen grand jurors on the presentation of the in- 
dictment, it is not a valid indictment. The indictment in qnes* 
tion was not found and presented according to law. It is, 
therefore, invalid, and must be dismissed. 

An order may be entered dismissing the indictment without 
prejudice to a resubmission, and that this case be presented to 
the next grand jury held in Tompkins county. 

Ordered accordingly. 




Oct. ao, 1810. 

(140 App. DiT. 179.) 

(1.) BnnxT OF Junioui. Owwice — iKDienam—PxKLL Law — Brno. tTl. 
The Indictment of » }adlcUl olBcer for raoelvlns a bribe coD' 
trery to section 872 of the Penal Law need not allece that the 
defendant uked for, recelred or agreed to receive a bribe vlth 
reference to some tveeific proceedlnc then actnall? pending be- 
fore him, or thereafter to be broncht before bim. It to anfflctont 
If It aUegea that be entered into an agreement for a general 
conrae of oormpC offldal conduct 

(X.) Sum— Not NBOcaaAix io Auxok Srcifio Cbikiiial Act. 

Hence, an Indictment under aald Mctlon la enficlent If in nl^ 
stance It atlegea a corrupt agreement between the defendant and 
another person aa to the fntnre conduct of the defendant In rel»- 
Uon to all nndertaklnga on bonda to be tendered for the release 
of prlsonera held to ball In the defendant's conrt. It la not 
necesaarr to allege any apeelflo criminal act done pursuant to the 
corrupt agreement. 

(S.) Sahb— EnDEHCB. 

Although said Indictment did not allege a speclBc act done pur- 
suant to the Gormpt agreement, it Is not error to allow the 
proeecntlon to give evidence of such specific act. This, because 
proof mar be given of the commission of an Independent crime 
provided It be relevant to the proof of the crime charged; and 
aa the crime was the corrupt agreement, proof that the defendant 
carried out the agreement In a specific Instance supports the 
charge of the indictment 

(4.) 8ui>— Sraoino Act fdistjaiit to CouaDrr AatBMxm, 

Atthongh pursuant to a corrupt agreement for a general coarse 

Bee Note, VoL 24-3H. 



of conduct (be defendant received a specific bribe, tbe Indlct- 
ment need not allege the apeclflc act on tbe theor? tbat tbe agree' 
ment and tbe act thereunder mnst be taken together aa a alngle 
oBense consisting of two elements. This, because if the defendant 
were snbaequentlr charged with the specific act, he conld plead 
the prior Indictment charging tbe corrupt agreement aa a bar. 
Rich, J., dissented In part 

Appeal by the defendant, Henry J. Furlong, from a judg- 
ment of the Supreme Court in favor of the plaintifi, rraidered 
on the 2d day of March, 1910, upon the verdict of a juiy, after 
a trial at the Kings Coimty Trial Term, convicting tbe defend- 
and of the crime of asking for and agreeing to accept a bribe. 

W. Bourke Coekran [^Marttn T. Manton with him on the 
brief], for the appellant. 

John F. Clarke, District Attorney, for the respondent 

Cakb, J. : 

Section 372 of the Penal Law (re-enacting Penal Code, 
§ 72) provides, in part, as follows: "A judicial officer, * * * 
who asks, receives, or agrees to receive a bribe^ or any money, 
property, or value of any kind, or any promise or agreement 
therefor, upon any agreement or understanding that his vote, 
opinion, judgment, action, decision or other official proceeding, 
shall be iniluenced thereby, or that he will do or omit any act 
or proceeding, or in any way neglect or violate any official duty, 
is punishable by imprisonment for not more than ten years, 
or by fine of not more than five thousand dollars, or both, A 
conviction also forfeits any office held by tbe offender, and for- 
ever disqualifies him from holding any public office under the 

Proceeding under this section of the statute the grand jury 
of Kings county, on October 29, 1909, presented an indictment 
against the defendant herein in form as follows: 



" Tbe Grand Jury of the county of Kings, by thiB indict- 
ment, accuse Henry J. Forloog of tbe crime of asking for and 
agreeing to receive 8 bribe and money, and a promise and 
agreement tberefor, committed as follows : 

" On the 16th day of September, 1908, at the borough of 
Brooklyn, of tbe City of New York, in tbe Coanty of Kings, 
the said Henry J. Furlong was a judicial officer, viz. : A City 
Magistrate of the City of New York, and of the Sec(md Divi- 
sion thereof, that is, said boroogh end county, and was then 
and thert^ and at all times herein mentioned, executing the 
functions of such judicial officer, to wit: the functions of a 
city magistrate of and in the City Magistrates' Court of the 
City of New York and said Second Division thereof; and 
the said Henry J. Furlong being such judicial officer, and 
exercising the functicois aforesaid, did then and there wil- 
fully, unlawfully and feloniously ask for and agree to 
receive a bribe and money, and a promise and agreement 
therefor, upon an agreement and understanding, to wit: an 
agreement end, understanding had and entered into between 
him, said Henry J. Furlong, and one Jacob J. Qotthelf that he, 
said Henry J. Furlong, should purchase a certain plot, piece 
or percel of land, with the buildings thereon erected, commonly 
known and designated as Number 925 Glenmore Avenue, 
there situate for the sum of one hundred and fifty dollars, 
or thereabouts, end that he, said Henry J. Furlong, shotild 
take title thereto in the name of e third par^, to wit, of one 
Horence Amstein and that she, said Florence Amstein, for 
and in consideration of tbe payment of money to him, said 
Jacob J. Gotthelf, should enter into undertakings and recog- 
nizances as surety in criminal actions, and in special proceed- 
ings of a criminal nature, cognizable in said City Magistrate's 
Court, and before him, said Henry J. Furlong, as such official, 
and should swear before him, said Henry J. Furlong that she, 
seid Florence Amstein, was the owner of said property in tes- 



tifying to her qiiaUfications to act as surety therein, and to ex^ 
cute aad enter into said recognizaDcea and undertakings, and 
that be, said Hemy J. Farlong, should swear aaid Floroice 
Amstein to her said oath of qaalificatioo, and that he, said 
Hemy J. Furlong, should take the acknowledgment of said 
Florence Amstein to said recognizances and nndertakings, and 
approve of said recognizances and undertakings, acting as such 
official, and that they, said Henry J. Furlong and said Jacob 
J. Gotthelf, should divide between themselves all such sums 
of money paid as aforesaid to the said Jacob J. Gotthelf for the 
execution of said recognizances and undertakings, that the 
opinion, judgment, action, decision and other official proceed- 
ing of him, the said Henry J. Furlong, as such judicial officer, 
should be influenced thereby, that is to say: thereby influenced 
to the end that and so that he, said Henry J. Furlong^ acting as 
such official, would administer to said Florence Amstein her 
oath of qualification as aforesaid and certify to the same, and 
that he, said Henry J. Furlong acting as such official, would 
take the acknowledgment of said Florence Amstein to said 
recognizances and undertakings as aforesaid and that he, said 
Henry J. Furlong, acting as such official, would approve of 
said recognizances and undertakings as aforesaid against the 
form of the Statute in such case made and provided." 

The defendant, on being brought to trial on the indictment, 
was convicted and was sentenced to imprisonment under an 
indeterminate sentence of not less than one year nor more than 
two years and one month. 

From the judgment of conviction this appeal has been taken. 
The grounds urged upon this court for a reversal of the judg- 
ment are somewhat numerous, and the more important of them 
will be considered in their order. The first ground is that the 
indictment does not state facts sufficient to constitute the crime 
of bribery of a judicial officer under the statute above cited. 
It is contended by the appellant that the indictment sets forth 



at mo6t facts showing a conspiracy to commit a series of crimes 
bat does not state the commission of any specific crime. Thia 
a^oment rests apon the assomption that, in order to bring a 
judicial officer within the proviaious of the statute, the bribe 
mast be asked for, received or agreed to be received with refer- 
eooe to judicial action in some specific proceeding then actually 
pending before the judge, or wbidi is to be brought before him 
thereafter. In other words, there can be no bribery unless the 
mutual understanding is that the judge shall act improperly in 
some specific case pending or to be brought before him, and 
that, if the understanding relates, not to any specific case, but 
to a general course of future conduct, the crime prohibited by 
this statute has not been committed. This precise question has 
not been the subject of any decisions heretofore in this State, 
although there are several decisions upon it of great weight in 
other jurisdictions. The statute has been construed, however, 
as to its general features, apart from facts similar to those 
now involved. It has been held that this statute prohibits three 
specific acts, any one of which is e complete crime in itsel:^ 
viz., the asking for a bribe; an agreement to receive a bribe; 
the actual receipt of a bribe. (People v. Qibson, Ifll N. T. 
227, 22 N". T. Crim. 188.) 

If it be true that it is essential to the nature of the crime of 
bribery that it shall relate to the doing of some specific act in a 
specific legal proceeding^ either then pending or in contempla- 
tion, the result will be as follows: A judge is guilty of bribery 
if he asks for, agrees to receive, or does receive mouey or 
property in a specific case of Doe v. Boe, to influence his offi- 
cial action in that case^ but is not guilty of bribery if he enters 
into an agreement with Doe to decide in the latter*s favor every 
case in which thereafter he may be interested, although then 
none are pending before him. If this result is within the con- 
templation of the statute, then it is anomalous, to say the least 



It would foUow that a judge is goilty of being bribed if he 
agrees to act cormptly in one specific case; bat has not been 
bribed if be agrees to act corruptly in every case which may 
thereafter arise in which the party offering or agreeing to 
pay the money may be interested. The only authority which 
appears to support this contention is that of Barefield v. State 
(14 Ala. [N. S.] 603). There the defendant was indicted 
for offering a bribe to a justice of the peace. The bribe was 
rejected. The defendant brought to the justice certain notes 
and accounts for collection, and offered the justice on&-half 
the amount of the notes and accounts if he would give judg- 
ment for him when the claims were sued on. The indictment 
was for a violation of a statute* which provided in part as fol- 
lows : " Every person who shall corruptly promise, or give to 
any * * * judicial officer, • « • any gift, or gra- 
tuity whatever, with intent to influence his act, vot^ opinion, 
decision, or judgment, on any matter, cause, or proceeding 
which may be then pending, or may by law come, or be brou^t 
before him, in bis official capacity, shall be punished," etc. It 
was there held that " to consummate the crime under this act 
it must be shown that the cause or proceeding was pending be- 
fore the officer at the time the gift or promise was made, or 
that the cause or proceeding was afterwards instituted before 
the officer, or so instituted, that in the ordinary mode of pro- 
ceeding the same would come before bim." The conviction 
was reversed on this ground as well as several others. So far 
as this ground of decision is concerned there was a strong dis- 
sent by Chiltoh, J. This authority was cited and disapproved 
in People v. Markham (64 Cal. 157), where a police officer 
was indicted for having received the sum of fifteen dollars 
upon an understanding that he would not arrest persons en- 
gaged in violating section 330 of the Penal Code of the State 

• Sm Clar'a Ala. Die iil, | 4.— [Rxp. 



of California, or persons engaged in violating tlie gaming ordi- 
nance of the city of San Jose. It was argued that the indict* 
moit did not set forth the crime of bribery because it did not 
ahow any agreement as to specific persons who had committed 
or were about to commit crimes against the statute. This 
contention was rejected by that court, and it was broadly 
hdd that the receipt of money by the police officer for the pur^ 
pose of corruptly infiueucing his general course of condnct 
as to arrests of persons who might thereafter violate the law 
constituted the crime of bribery. 

In Commonwealth v. Lapkeun (156 Mass. 480) a similar 
question arose under an indictment for attempted bribery of a 
milk inspector. The statute there involved made it criminal 
to corruptly give, ofiEer or promise a bribe to any executive, 
legislative or jadicial officer. It was held that it was not neces- 
sary in the indictment to aver a corrupt intention to influence 
the act of the officer in relation to any specific and particular 
matter then pending before him or which was then expected 
to come before him. The court said : " It is enough to aver a 
corrupt intention so to influence him in any matter which may 
then be pending, or which may by law come or be brought be- 
fore him. If for example an executive, legislative or judicial 
officer is bribed corruptly to favor a particular person In any 
and all matters affecting that person which may come before 
such officer, without specification or knowledge of the particu- 
lar matters likely to come up, the statute is broad enough to 
include such a case. A narrower construction of a similar 
statute has been adopted in Alabama, but we cannot follow it 
(Barefteld v. State, 14 Ala. 603.) " 

Thus, it appears that the wei^t of authority outside this 
State is in favor of the sufficiency of the indictment at bar. 
Independently of authority, and as a matter of reason, the same 
result should follow. The statute is framed in comprehensive 
terms to meet a serious offense which is so manifold in its 



varying forms that language of particularity could cover 
scarcely all the aspecta in whidi it can present itself in the 
every-day affairs of men. From the dawn of civilized govern- 
ment, official cormption has been one of the most persistent 
dangers to which a body politic has been exposed. It is a vice 
of all governments, because it is a vice to the temptations of 
which most men are exposed. The plain object of that statute 
is to stamp it out and prevent its reappearance. No construc- 
tion of this statute which would fail to cover a case of an agree- 
ment for a general course of corrupt conduct, even though it 
should not be followed by a single corrupt act, would be even 
tolerable. The corruption aimed at is not simply the doing of 
things which may be improper in themselves, but even the do- 
ing of proper things as the result of an improper agreement. 
The statute would be violated as much by an agreement for 
compensation from private parties to take special pains to de- 
cide, even properly, a matter coming before the officer as it 
would by an agreement to decide it improperly. In other 
words, the statute reaches out as much against the influencing 
of the officer's judgment or decision as it does against the im- 
proper result of such influence. The offense is bo subtle in 
its fruits that the law endeavors to lay the axe at its very 

We think the indictment at bar sets forth sufficiently the 
commission of the crime of bribery under the statute when 
fairly interpreted. The crime so charged was the corrupt 
agreement between Gotthelf and the defendant relative to the 
future conduct of the defendant in relation to all undertakings 
or bonds to be tendered by Gotthelf through the dummy Am- 
stein for the release of prisoners held to bail in the defendant's 
court. This agreement being proved, to sustain a conviction it 
would not have been necessary to prove any distinct criminal 
act following in pursuance of it, for a crime was committed by 



the making of the agreement itself. (People v. MarJcham, 
supra; People v. Oihaon, supra.) 

On this trial, however, the prosecution gave proofs tending 
to ahow that the defendant did actnally carry this agreement 
into completion in the case of one Uttal, who had been held for 
bail under a charge of abandoning hia wife, and that the de* 
fendant had received hia agreed portion of a fee of fifty dollars 
which TTttal paid Qottbelf for procaring the giving of an un- 
dertaking by Amsteitt and its approval by the defendant. It 
it oiged by the defendant that the admission of this evidence 
was grave error, as it tended to convict him of the crime of 
briboy in a specific instance not charged in the indictment. 
The general rule is that proof may be ^ven against a defend- 
ant of the commission of an independent crime provided it be 
relevant to the proof of the crime charged in the indictment. 
{People V. Sogers. 192 N. T. 331, 351 ; 22 N. Y. Crim. 876.) 
The test of relevancy is whether the proof offered tends legit- 
imately to establish the issuable fact The proof given as to 
the Uttal transaction tended to support the charge set forth in 
the indictment, for, if believed by the jury, it showed acts of 
the defendant entirely harmonious with the charge of the in- 
dictment, and not easily intelligible otherwise. According to 
this proof Uttal paid Gotthelf fifty dollars to procure a bond 
for bis dischaige. Oottbelf got Amstein to come to his office 
and sign a bond, giving as secnrity the real property described 
in the indictment and falsely describing in an affidavit form 
thereto attached the value of the property. Amstein then went 
away, before actually acknoweldging the bond or verifying 
the affidavit as to the sufficiency of the secnrity. The de- 
fendant then appears at GotthelTs office and puts his sig- 
natures to the acknowledgm^it and to the jnrat of the affi- 
davit, notwithstanding Amstein neither acknowledged nor 
swore to the instrument in bis presence. Thereafter, as before 
indicated, he received his portion of the fee received from 



Uttal, aa tbe proof goes. The proof of these circumstances 
seems clearlj relevant to the charge of the indictment It is 
ui^ed, however, that where there has heen an actual receipt of 
the bribe the agreement to receive the bribe and the subsequent 
receipt of the bribe itself become so mei^ed aa to constitute 
together one complete crime or briber; under the statute in 
question and were not two distinct offenses. That is to say, 
if the defendant, after making the corrupt agreement charged 
in the indictment, actually carried it into effect and received 
its fruits, then there was but one crime consisting of two ele- 
ments, the bargain and the receipt, and it, therefore, became 
necessary to charge both elements of the one single crime in 
the indictment. In People v. Oibaon (mpra) the defendants 
were indicted for having received a bribe on a corrupt agree- 
ment whereby their official action was to be influenced. The 
defendants pleaded the Statute of Limitations in bar, because 
it appeared that the corrupt promise had been made at a time 
sufficient to set up the running of the statute. The money 
agreed to be delivered onder the promise was not received 
until a time against which the statute had not run. It was 
held that the agreement and the receipt together constitute a 
single crime and that, where the consummation of the crime is 
delayed by the nature of the corrupt agreement, the Statute 
of Limitations will not begin to run until after the consumma- 
tion of the offense by payment of the money previously agreed 
upon. There, however, the question involved was not as to the 
sufficiency of the indictment nor aa to the admission of evi- 
dence in support of it. The defendants there were not indicted 
for a corrupt agreement for a general course of conduct, but 
for an agreement in relation to one specific act of official mis- 
conduct. The fact that the indictment at bar did not charge 
the specific acts of the Uttal transaction In no way violates any 
known rule of law, unless, perhaps, it be on the theory urged 
by the appellant that the failure to so charge these facts would 



deprive him of the right to ple&d the present indictment in har, 
ehoold he hereafter be indicted on the Uttal transaction as an 
independent offense. While this point was not involved in 
People V. Oibson (supra), and, therefore, not decided, yet the 
court aqoarely declared that it was its opinion that under this 
atatnte there could not be two separate convictions, one for the 
agreement for a bribe and one for the receipt of the bribe as 
two independent offenses. This proposition of law seems so 
plain as to be beyond debate. If a(^ then the various conten- 
tions raised at the trial and on the argument of this appeal as 
to the form and sufficiency of the indictment require no further 
discussion. The record before as shows that the learned coun- 
sel for the defendant took very many exceptions at the trial as 
to the admission and exclusion of evidence and the charge of 
the court. These exceptions number many hundreds, and it is 
not to be expected that all, or even most of them, are to be 
discussed here in detail. The more important of them yet re- 
maining to be discussed relate to the question of the corrobo- 
ration of the testimony of the accomplice Gottbelf, and the 
chai^ of the trial conrt on that point. The defense submitted 
to the trial court forty-three requests to charge, embodying the 
law <Ht all the questions of the case as favorably to the defend- 
ant as can be well conceived. Practically all of these requests 
were charged in their very language. In a few instances, the 
trial conrt made some modifications in the language which in 
no way infringed upon any of the defendant's ri^ta. The 
single request refused was refused properly, as its avowed pur- 
pose was to take from the jury the chief question upon which 
the jury was to pass. A reading of the various requests charged 
by the trial court, t(^her with the main body of the charge 
itself, shows no error. The necessity of the corroboration of 
the testimony of the accomplice Gottbelf by evidence apart 
from his own, was kept clearly before the mind of the jury. 
The requisites of such evidence as tending to connect the de- 



fendant vith the commission of the crime charged were ex- 
plained in barmoDj with the rules laid down bj the Court of 
Appeals. Aa we can see no appearance of error on this point, 
no further discosaion of it is needed. That there was corrobo- 
rating evidence, which if believed b; the jnr; did tend to con- 
nect the defendant in material ways with the commission 
of the offense charged, is too plain for debate. Our examina- 
tion of this record, aided b; the learned and resourceful argu- 
ments of counsel of great distinction and wide experience, dis- 
closes no ground for interference with the verdict of the juiy 
on any questions of law. As to the facts, the case is one of 
great pathos. To this pathetic aspect, the jury was not insensi- 
ble, for with its verdict went a prayer for mercy. The trial 
court showed itself also not insensible to the miserable situation 
of the defendant, for its sentence was framed in mercy and 
wisdom, large enongh to satisfy the requirements of justice 
if the defendant were gnilty as the jury declared him, yet not 
so severe as to shock the mind and undo the moral purpose of 
the administration of the lav by provoking sympathy for the 
convicted prisoner. Neither is this court insensible to the fate 
of the prisoner ; but, as he was fairly tried, after a skillfnl and 
resourceful defense by counsel of distinction and experience, 
and was convicted upon competent evidence by a jury guided 
carefully as to the law, the facts disclosed in the record before 
us are not such as to justify any interference with the judg- 
ment of the trial court. 

The judgment of conviction is affirmed. 

WooDWABD, Jerks and Thouas, J J., concurred; Rich, J., 
dissented on the ground of error in the admission of evidence 
respecting the Uttal case. 

Judgment of conviction affirmed. 



IToT. 16, 1910. 


(199 N. T. 414.) 

(1.) UuxiwB— QmsTTORB OP Fact warn Jcit. 

It is tor the Jury, and not for tlie court, to dstarmlne eontro- 
verted queatlons of fact arlalng: upon conflicting eridence, and 
where a Jury upon inch evidence has reached the concliulon that 
a delendant U valltT of a crime and such concliulon faaa been 
rettched br the determination of which of two seta of wltneaaai the 
Jurora will believe, their verdict ahould not be set aside nnlees the 
evidence la inch aa to Indicate some mlannderstandlng by them 
of the qaeetlons Involved or of the Importance or bearing of 
partlcQlar facts or that the Jnrr was attected by some bias or 
prejudice against the defendant 

(2.) 6aicz — EvmcKCK. 

On examination of tbe evidence on conviction of defendant for 
the crime of murder In the flrat degree, held, that there la no 
such apparent mlaundentandlng by the Jury of any question of 
lav or fact or any bias or prejudice against the defendant aa to 
Justify the court In setting aside the verdict as against evidence. 

<3.) Sua. 

At the Jail three days after the murder, defendant. In tbe 
preaence of wltneaaes, was confronted with the man who was 
Jointly Indicted with him but tried aeparately, who, loolclng at 
defendant, said: "That's the man that done the cutting." De- 
fendant made no reply except to ahmg his shoulders. The value 
or effect of this evidence was for the Jury, but In view of the facts 
and circumstances surrounding the Incident its admission was not 

(4.) Sua — Acts Aini STATKunra or Cokjonsfoatobs. 

The fact that the defendant waa aeparately tried In no way 
changes the rule tliat the acts and statements of co-consplraton are 



admiMlble as^lDst eacb ottier. Brfdenoe, to tbe effect that the 
peraoD jolntlr Indicted with defendant aent an employee to notifr 
a third penon that Ite was ready to pay hia rent and that aach 
third penon aald he would aend a man for It In the aftsmoon, 
waa not Improper In Tiew of teatlmony that the peraons jolntir 
Indicted had planned together to commit the crime. 

(6.) 8u»— NawLT Dtsooram Bthikkcx— Uonon Paonu-T Dehud 
IF rr oouui Han bsbk Khowm bt DKnmuirr'B Couitbix. dt 
RcasoiTABLa DnjeKHCK had sawn Exxacisin. 
Upon a motion for a new trial, upon the Kroonda of nevly-dla- 
coTered evidence defendant's coonael aaaerted that erldence con- 
■latlnK of the teatlmonr of a policeman, as to atatementa made to 
him l>7 deceased shortlr after the homicide, and of the record of 
atatementa made by the deceaaed when he waa admitted to the 
hoepital, waa unknown to him until It waa bronsht out by the 
proaecutlon on the aulMequent trial of the defendant's accom- 
plice. The lair construction of thla evidence la that deceased 
did not know who hit him. bat that the only person that he aaw 
In the room was the other detendanL It appears that atatementa 
similar to thoee so teatlfled to were published in the newspapers 
and were matters of common knowledge at the time, and that 
the statomenta made by the deceased to the hospital physician 
became a part of the public records of the hoapltaL iTeld, that 
the evidence, aaenmlng It to be proper, could have been Icnown 
to the counsel for defendant It reasonable dlUsence had bem 
exercised before the trial, and that the motion for a new trial 
was properly denied. 

Appeal from a judgment of the Supreme Court, rendered 
Janaary 11, 1910, at an Extraordinary Trial Term for the 
count; of Albany upon a verdict convicting the defendant of 
the crime of murder in the first degree. 

The facta, bo far as material, are stated in the opinion. 

Peter A. Delaney and Michael D. BeiUy for appellant Se- 
Teraible error was committed in the admission of the testimony 
of tbe People's witnesses in reference to tbe action and state- 
ment of Vincenzo Leonardo at tbe Albany county jaiL {Peo- 
ple V. Koemer, 164 N". T. 855; People v. Kennedy, 164 N. T. 



449; People v. Smith, 172 N. Y. 210; People v. Cateone, 185 
N. Y. 317.) AppeUaofs motion for a new trial apon the 
grotmd of newly-discovered evidence sboold lutve been granted, 
and for error denying the same the judgment appealed from 
should be reversed. {Hurd v. People, 25 Mich. 415; WeUar 
V. People, 30 Mich. 22 ; Donaldson v. Comm., 95 Penn. St 21 ; 
State V. Metealf, 17 Mont. 417.) 

Rollin B. Sanford, Dittriet Attorney, and Harold D. Alex- 
ander for respondent. 

Chase, J. On Satorday, October 2, 1909, Oeorge E. Fhelpa 
received six wonnds in bis head and neck, from the effects of 
which be died October 6, 1909. The wounds were not self- 
inflicted, nor were they the result of an accident. His death 
was the reaolt of a homicidal act It appears without contra- 
diction or dispute that the person or persons who inflicted the 
wonnds deliberately designed to effect bis death. 

Vincenzo Leonardo and this defendant, Dominico Ferrara, 
were jointly indicted for the crime and charged with murder 
in the first d^ree. Both pleaded not guilty, and each de- 
manded a separate trial Tbe jury found the defendant guilty, 
and it is from tbe judgment of conviction that this appeal is 

The homicide occurred in a building at the southwest comer 
of Broadway and Madison avenue in tbe city of Albany. Vin- 
cenzo Leonardo Senior, father of tbe one jointly indicted with 
the defendant, was the tenant of tHe building, and tbe floors 
above tbe first floor were used for cheap lodgings. Tbe first floor 
was occnpied in part as a saloon. The barroom was in the 
northeast comer of the building, and to it there was an entrance 
from Broadway and also from Madison avenue. Adjoining 
the barroom on the west was a sitting room, and to such room 
there was an entrance from the barroom and also throuji^ a 



Bmall room used aa a kitcheii, adjoining the sitting room from 
Madison avenue. Immediately south of the barroom and the 
sitting room was a hall, to which waa an entrance from Broad- 
way. At the left of the entrance was an office partially parti- 
tioned from the remaining part of the ball. Back of the office 
was an entrance from the hall to the harroom, and opposite the 
entrance to the barroom, and sonth of it, was an entrance to a 
room which is south of the hall, and which is called a storeroom. 
In the hall, immediately west of the doors leading therefrom 
to the barroom and storeroom respectively, waa a stairway on 
the south side of the hall leading to the second floor and the 
lodgings, and a narrow hall leading past the stairway to an- 
other stairway, and a rear entrance^ which was reached by an 
alley leading from a street west of the building, which street is 
parallel with Broadway. The storeroom had formerly been 
used as a pool-room, but at the time of the homicide it waa 
partially filled with furniture, boxes, rolls of carpet and other 
things, and among the other things there was at the rig^t of 
the entrance from the hall a wagon, and in the northwest eor^ 
ner of the room, and west of the wagon, was a pile of eoal. Im- 
mediately to the left of the door as one entered from the hall, 
and behind such door as it was opened, was a desk about two 
feet wide and three feet long. Leading from a doorway at the 
west end of the storeroom and near the south side of it waa 
another hall, from which was a door to the alley mentioned, 
and further to the west and opening from such hall was a rear 
room, extending west beyond the other part of the building 
and to the street referred to as paralleling Broadway. From 
the storeroom double doors lead into Broadway, but at the 
time of the homicide one of the doors was closed and fastened 
and the other could not be opened from the outside, because the 
knob with which to turn the holt fastening it had been broken 
off. It could be opened from the inside. 
A short time before the homicide Leonardo, Junior (here- 

by Goc^lc 


inafter referred to as Leonardo), obtained a saloon license for 
the rooms so used aa a saloon. The defendant resided with bis 
brother at the comer of Broadway and Herkimer streets in 
said citj. The place where he resided is two short blocks south 
of the Leonardo building. The brothers occupied a three-story 
building also used as a cheap lodging bouse, except that a 
portion of the first floor was occupied by them as a fruit store 
and another portion thereof as a kitchen and living room. The 
rent of the Leonardo building was payable on the first of each 
month. It was not paid on Friday, October 1. The price of 
lodgings in the Ferrara building was ten cents. The defend- 
ant's brother divided the amount received with the defendant 
from time to time. The brother testified that if the defendant 
had any money it was very little. 

On Saturday morning Leonardo told his bartender to tell a 
man whom they saw on Broadway to send some one to collect 
his rent. He told the man as directed. The man replied that 
he would send some one in the afternoon. This was communi- 
cated to Leonardo. Phelps went to Leonardo's saloon to collect 
the rent before 2.30 p. m. Saturday, October 2. A few minutes 
thereafter, and, as nearly as can be told, at 2.30 p. m^ he was 
seen to come from said storeroom, through the hall and bar- 
room, and pass into the street He was covered with blood, 
and blood was streaming from one of his temples. Soon there- 
after he was taken to the hospital, where he died a few days 
later. The autopsy disclosed the wounds mentioned, which the 
surgeon described as " stab " and " knife " wounds. Two of 
the wounds were more severe than the others, one of which was 
back of the right shoulder, extending to and against the spinal 
column ; the other was in the right temple and it was about one 
inch, or an inch and a quarter in length and penetrated the 
skull and also penetrated and lacerated the brain. There was a 
black and blue spot covering the left eye and the region about 
the eye, and to a lesser extent the right lower eyelid. 



The tlieory of the prosecution is, that Leonardo and the de- 
fendant were in need of money, and that at some time prior to 
the commission of the crime thej planned to take the life of 
some American in the locality where they lived, for the purpose 
of obtaining mon^, and subsequently, with that end in view, 
word was sent by Leonardo to the landlord of the premises occu- 
pied by him and his father to send some one there for his rent ; 
that when it was known that he would be there Saturday 
afternoon, the defendant in some vray was made avrare of the 
arrangement ; that Phelps was sent for the rent and was taken 
into the unused storeroom where Leonardo and the defendant 
(who must have preceded Phelps into the room and tem- 
porarily concealed himself therein) made the assault upon him 
that resulted in his death. 

The defense consists of an unqualified denial. No one was 
produced on the trial who testified to seeing the assault. The 
only direct evidence connecting the defendant with the assault 
was given by one Bemabic, a detective, to whom, he testifies, 
the defendant disclosed to some estent his connection with 
the crime. 

Bernabic is an Austrian who speaks several languages, in* 
eluding Italian, which he speaks indifferently. He has been in 
this country fourteen years, and is an American citizen. For 
six years prior to the trial he had been employed by a private 
detective corporation, and actually engaged during most of that 
time in behalf of the New York Central & Hudson River Kail- 
road Company. He testified that on December 2, while work- 
ing for said corporation in behalf of the city of New York, he 
was ordered by the president of the corporation to go at once 
to Albany ; that he did so that night, and arrived in Albany in 
the morning and went to the oflSce of the New York Central 
police department; that he there saw the president of the de- 
tective corporation and talked with him, and was told what he 
was there for. He testified among other things that he was 



hired to go to jail and get evidence in thia case against Do- 
minico Ferrara ; that he was not told the name of Phelps or of 
any other person at all, and that he was not told that a man bad 
been stabbed or lulled in Broadway, bat that he was told that 
two Italians were locked up for murder. Soon thereafter he 
was taken by an officer as a comm(m prisoner and subsequently 
locked in the county jail, where he remained for nineteen 
days. He became acquainted with the defendant and was asked 
by him what he was in jail for, and he told him that he came 
down from Troy that morning and while he was getting some- 
thing to eat he was arrested and searched, and that the officer 
found a revolver on him. He testified that the defendant and 
other prisoners said that he must be held on suspicion of a 
Qreen Island murder. He testified that they talked every day, 
but nothing was said about this case for four or five days. He 
testified that the defendant said in substance that Leonardo got 
a pick from his brother^in-Iaw about a month before the crime 
and dug a hole where the man murdered was supposed to be 
put ; that subsequently and on the same day Leonardo's lawyer 
came to talk with him and Leonardo was taken outside of the 
hall at the jail and defendant said to him (Bemabic), " Look 
over here, Mike ; here is Leonardo and he swear he say this is 
the man. He is a ' squealer ' he says," and he say, " If I ever 
get out of this trouble any time I won't have nothing to do 
with these Sicilians any more." I say, " Why ) " " Well," he 
say, " the Sicilians are no good; they are squealers; if they do 
anything wrong like this and if there is anybody else with 
him in company they squeal on everybody," and he says, " A 
Calabrian is not that way ; if they do any thing like that, one 
man what get caught," he says, " he puts the whole blame on 
himself and he won't tell on the rest of the bunch at aU." 

That on another day the defendant talked with him about 
his (witness) case, and the defendant asked him if he belonged 
to any organization in New York that would help him and 



Baid that he belonged to an organization; that they used the 
name of " Famel Mortabano ; " that it was vhat the people out- 
side called " black hand," and the witness told the defendant 
that he belonged to an organization in New York and that he 
" belonged to a bad bnnch of fellers, too," and the conversation 
was continned as to the manner of initiation into the societies 
and how thej could recognize one another, the details of which 
are unimportant at this time. The witness testified that he 
wrote a letter from the defendant to a brother in Rochester and 
the defendant put on other sheets of paper certain letters or 
writings which he said could be given to the leader of his 
organization. The witness produced the papers, but they have 
not been translated and are of no ascertainable meaning. Later 
the witness testified that the defendant told him more in detail 
about the crime for which he is indicted. Among other things 
the witness testified : " He saj that two months ahead when 
this crime was committed that Vincenzo Leonardo told to 
Dominic Ferrara that they were going to kill some American 
who got a lot of money, but Dominic say at that time, ' I don't 
know who was this American,' and two days before the crime 
was committed he say, ' I meet Leonardo in the doorway of his 
saloon, which was on the comer of Broadway, and Leonardo 
told me that next day we are going to do this job, and he showed 
me his knife which he was carrying with him all the time. He 
say this knife was what he call a poniard.' I ask Dominic, 
' What do you mean by that, poniard ? I never see such a 
knife before; I don't know what kind of looking knife is it.' 
He says, ' It is a knife with a point sharp both sides.' Then I 
say, * The knife must be dangerous to carry like you say that 
Leonardo was carrying that knife with him all the time.' 
' Well,' he says, ' this kind of knife they have some kind of 
cover to put the blade inside — some kind of box or something 
or leather, made of leather. It is not dangerous at all ; he al- 
ways carry it under his shirt in here (indicating). When he 



done this,* he sa^, ' it was on Saturday around two o'clock in 
the afternoon.' He Bays, ' when this man came in there in the 
BaIo(Hi to collect his rent Leonardo told to him, ' Qo in the next 
room ontBide of the bar.' So he did. He say, * He went up 
there and sat down at the table so Leonardo,' he says, ' come up 
there and he started in to count his money.' He saya, ' He have 
about $120 in a handkerchief, and I stood over behind, he says, 
and hit this man with the old Leonardo's stick I ' Then I ask 
Dominic I say, * What do you mean by that, old Leonardo's 
stick } ' ' Well,' he says, ' Leonardo's father is an old man ; he 
is a lame feller; he can't walk without a stick, so this was one 
of his sticks what he used when he go out,' and he says, ' I 
struck this man over his bead and the stick got broke, and this 
man started in to fight with us, and I got scared then,' he say, 
' and I ran away, and this time Leonardo pulled oat his knife 
and he stabbed this man and I left him over there and nm 
away.' " 

The witness further testified that defendant told him that 
after the homicide he went with his brother to pay their rent 
and then came back and saw Leonardo taken away by the offi- 
cers, and he further testified: " I never was afraid of anything 
because Leonardo anpposed to be not a squealer and I wasn't 
afraid anyway because," he says, " I never had no blood on 
me only where I have blood on my right hand and the handker- 
chief, and Leonardo's clothes what he have on," he says, " was 
all covered with blood." He says, " I stood three days after 
this crime was committed in Albany; if I should know he was 
going to squeal on me I have plenty of time to go away," but 
he says, " I was always thinking that he won't squeal, the 
same as he is not supposed to squeal. He is supposed to die 
and get whatever they give to him but not squeal. It was 
three day," be says, " after this crime was committed, when 
they locked me up. But," be says, " I am more afraid of some 
woman," of which he never mentioned any name to me, that 



she might do more harm to him in this case than anjbocly else. 
He saya, " I am not afraid much of Leonardo, because," he 
says, " I think that Leonardo's testimony against me won't be 
any good at alL" 

The derby bat which Phelps wore when he went to the saloon 
was found after the homicide a few feet hack of the small table, 
with an indentation in it such as may have been made by a 
blow from a walking stick, and in the room that we have called 
the rear room it was found that the Boor had been taken up 
and a hole about two feet wide, five or six feet long and four 
feet deep had been dn^ and it remained open. The dirt had 
been piled upon the floor adjoining the hole. The defendant 
after the homicide on Satorday did go with his brother to their 
landlord, and subsequently they went up Broadway to a point 
near Madison avenue. 

One of the women at that time living in the Ferrara house 
testified that on Saturday the defendant went out of the house 
about eleven o'clock and returned about one o'clock. She 
says that he changed his clothes at that time from a gray suit 
that he was wearing to a brown suit, and afterwards went up 
Broadway towards Madison avenue. We quote from her 
further testimony: "He went up and he dilly-dallied around 
the comer; be went up to Broadway and Madison avenue 
and dodged back and forth behind a tree and after that he 
had a talk with the boys and went into the saloon on the 
corner of Madison Avenue and Broadway." She testified that 
she next saw him at half-past two as near as she can remember 
near Herkimer street and that he came in the house and walked 
over to the sink and turned on the water ; that he had a knife, 
the blade of which was about six inches long and the handle 
about four inches long; a jack knife that folded; that she 
noticed that there was blood on it. She further testified, *' I 
asked bim what made him so nervous, and he said it was all 
right, kid. And then he walked over to the door and I said. 



' There is a spot of Wood on your shirt.' And he said, ' Never 
mind, kid. It is all right.' I saw a spot of blood on the back 
of his shirt, ri^t between bis two shoulders. He didn't have 
a coat on at that time. I aaked him what was the blood on his 
shirt for and he said it woold be all ri^t ; ' never mind, kid,' 
it would be all right. I saw blood on his face, on the cheek 
(ind.). After he washed the knife he threw it up on the shelf 
in the kitchen." She further testified " he washed his face and 
hands and he washed his face in a handkercbief and he threw 
it in a box under the counter * * * it was a red handker- 
chief with red border and red stripes." She further testified 
that be walked up and down the floor and used a blasphemous 
exclamation ; that he went upstairs and changed hia clothes to 
the gray suit again, and then came down and went up Broad- 
way where the crowd was that had congregated after the 
homicide. She further testified that on the following Mcoi- 
day she went with the defendant to a laundry where he took 
the shirt on which were the blood spots to have it laundered. 

Another woman who lived at the Ferrara bouse testified that 
the defendant went out Saturday morning and returned and 
afterwards went out again. She says that she was standing 
in the doorway at the Ferrara house and that the defendant 
came down the street just as the crowd began to gather at the 
comer and passed her like a shot out of a gun and went into 
the house, and she testified to his using the blasphemous ex- 
pression and that he seemed nervous and excited. She says 
she did not notice any blood and did not see anything in hia 
band, but that she was not paying any attention. 

The defendant was arrested three days after the murder 
and taken to the police station, where he was told that Leo- 
nardo charged him with stabbing Phelps and he denied it. 
After he was taken to the jail and in the presence of wit- 
nesses, including two officers, he was confronted with Leo- 
nardo and Leonardo, looking at him, said : " That's the man 



thai done the cutting." The defendant made no reply except 
to shrug his shoulders. 

The agent for the owner of the Leonardo bnilding testified 
that Phelps was in his ofiSce about two o'clock Saturday but 
that he did not know what time he left. He also testified 
that on Thursday or Friday after the homicide he found a 
handkerchief in a macaroni box on a shelf on the north side 
of the Ferrara store. The women who testified to seeing the 
defendant wash his face with a handkerchief identified the 
handkerchief found as the one which the defendant then used, 
and it bears evidence of blood stains. 

A young man at the time of the homicide in the employ of 
Ferrara testified that the defendant showed him a knife made 
out of a file when he was in the kitchen a few days previous 
to said Saturday; that on October 6 he was with the officers 
when a search was made for the knif^ but they did not find 
it. He also testified that Leonardo opened his saloon Friday 
night before the homicide; that be was passing the saloon 
that night with the defendant, and at his suggestion they went 
in; that Leonardo said to defendant, "Hello, Dominic," and 
gave each of them a drink, and that Leonardo and defendant 
had a talk by themselves for a few minutes ; that on Saturday 
morning he sat in the park nearly opposite defendant's store 
with the defendant, and that defendant left him at probably 
eleven o'clock and went up Broadway. On October 8 an offi- 
cer again searched the Ferrara house and found a knife made 
out of a file in defendant's brother's room on a mantel, behind 
a picture and under a paper. It is not a folding knife. Soon 
after the homicide officers searched the Leonardo building. 
In the storeroom they found the floor back of the desk covered 
with blood; on the floor they also found the hat with a pair 
of eye glasses in it ; some small coins amounting to sixty-three 
cents and the broken crystal of a watch. In the northwest 
comer of the room, on a coal pile beyond the wagon they 



found a watch with blood on it — to it waa attached a broken 
chain, and the crystal of the watch was missing. The widow 
of Phelps identified the watch as one that he wore. One 
witness testified that between two and three o'clock he went 
upstairs in the Leonardo honse to a sitting room in the north- 
east comer of the second floor, and in doing so he passed through 
the barroom and saw Leonardo, his bartender and another 
man there ; that about twelve or fifteen minutes after he beard 
wrestling and scuffling^ and a man called " Murder," and a 
minute or two after he saw the man bleeding in the street. i 

Leonardo's bartender testified that he never saw any busi- 
ness done in the storeroom; that be saw the defendant in the 
saloon Friday ni^t and that the defendant talked with Leon- 
ardo probably twenty minutes ; that he, at Leonardo's request, 
notified the man that he could send some one for the rent ; 
that he left the saloon on Saturday about two o'clock and did 
not return nntil about twenty minutes of four. 

A man that was passing the saloon saw two men struggling 
put of the door to the street. One was Fhelpa and he was 
covered with blood and the other one was Leonardo and he went 

A car inspector who was riding on a north-bound street car 
came along about thirty-two minutes after two and went to 
Phelps' assistance; at that time no one was with Phelps. He 
testified as follows ; " I raised him up and saw the wound. I 
asked him what happened to him. He said, ' I have been 
stabbed.' I asked him, ' Where ? ' He turned — he was fac- 
ing north, he turned and pointed to the comer on the south- 
west comer. He said, * In there.* He again repeated, ' Get 
my hat' I said, * Never mind your hat. Come over and sit 
down.' The blood was coming freely. I endeavored to stop 
the flow of blood and get him seated. He almost refused to 
leave the center of the street until I would get him bis hat. 
Finally t had to force him to that side of the street and aa 



we were getting to the curb he took hold of his coat and he 
pulled it open and aa he polled it open he put bis hand into 
his pocket (ind.) and he said, ' The receipts, the receipts, the 
receipts are gone.' " 

The witness says he went over to the saloon and found it 
locked and returned to Phelps ; that an officer was questioning 
him and he heard him say, " The money is on the table." 

The defendant was awom as a witneea and testified that be 
bad known Leonardo for five months. He further testified 
that be was at tbe Ferrara building from one o'clock on Sat- 
urday until after the homicide, and in this be was corrobo- 
rated by his brother. He denied most emphatically that he 
had admitted to the detective that he had any participation in 
the crime, and be also denied the testimony of the women 
sworn in behalf of the prosecution so far as such testimony 
tended to connect him with the bomicida 

Except as stated there is very little conflict in the evidence 
although counsel for tbe defendant insists that the testimony of 
tbe prosecution is contradictory and unreasonable. He also 
calls attention to tbe fact that the alleged broken stick waa 
not fonnd and tbe defendant testified that tbe handkerchief 
found in the box was used on Monday following the homicide 
to quench tbe flowing blood which was then upon the face 
of a person in the bouse. 

Tbe defendant also produced a witness who testified that 
he went to Leonardo's for a pail of beer Saturday afternoon; 
that be went into the barroom, but that when he went in 
there be saw no one there; that be saw Phelps come out of 
the hall into tbe barroom and pass into the street; that be 
saw Leonardo in tbe storeroom and his father was behind 
him ; that when be first saw Leonardo be had bold of Phelps 
and that he was frightened and ran out and across the street. 

Another witness for the defendant testified that be worked 
for Leonardo; that he was in tbe barroom Saturday after- 



noon when Pbelp came in, and that Leonardo then sent him 
away on an errand; that he waa gone twenty or twenty-five 
minntea and returned about half-past two, but found no one 
in the barroom; that Leonardo, Sr., was in the sitting room 
and he went in there and talked to him bat he made no reply ; 
that he then started to go upataira and met Leonardo stand- 
ing in the doorway leading to the storeroom ; that he said to 
Leonardo, " what was the matter " and he replied, " nothing ; " 
and that he th^ returned to the sitting room. He farther 
testified as follows : " I wasn't there half a minute when I 
heard somebody hollering ; I beard them hollering ' Oh ' as 
if he was hurt. He didn't holler very loud. He just hol- 
lered, ' Oh,' ' Oh ' just as if he were getting hurt or something. 
The old man jumped up and he said, ' Fight ; ' and he went 
out in the barroom and I followed him. * • • Xhe first 
thing I saw after we got into the barroom was this Phelps 
stagger ont with blood all over him. He came from across the 
hall out of that poolroom. The door between the ball and the 
barroom was open when be came out. There wasn't nobody 
with him only when Fbelps staggered in the hallway the old 
man went past him and went in the poolroom. Vincent Leon- 
ardo, JonioT, was right back of Phelps. Vince had hold of 
Phelps in the back, with one band holding the bottom of the 
coat, and the other hand about midway up the back. • « • 
Phelps dragged Leonardo clear over to the Broadway door. 
Leonardo seen that he was getting away from him and he 
let loose of him, and Mr. Phelpa went outside. • * • When 
Leonardo, Sr., came out of the poolroom he went upstairs. I 
noted that he had the money in his hand as he went upstairs. 
I seen a couple of bills across his hand like that (ind.), and 
then something tied up in a rag. At that time young Vincent 
Leonardo was in the back part wadiing the blood off his hands 
and face.'^ Leonardo, Senior, was not sworn. 

At the close of the evidence on behalf of the prosecution 



counsel for the defendant said: "I now make a fonnal 
motion * * * to advise the jury to acquit on the ground 
that there is not sufficient evidence to vrarrant the submission 
of the case to the jury on the part of the prosecution." The 
motion was denied and an exception was taken. The denial 
of the motion was undoubtedly right^ as the evidence was 
such aa to require the submission of the case to the jnry. At 
the close of all the evidence no further motion to dischai^ 
the defendant vras made. There was an apparent acquiescence 
in the course pursued by the court in leaving the question of 
fact to be determined by the jnry. At the close of the court's 
charge to the jury the district attorney and the counsel for the 
defendant each stated that be bad no requests to make to the 
court in regard to the charge, and no exceptions were taken. 
At the close of the evidence, a brief statement of the material 
parts of which we have mentioned, it was the dnty of the court 
to submit the question of the defendant's goilt to the jnry for 
their determination, and were it not for the rule in criminal 
cases (Code of Criminal Procedure^ sec 389) requiring greater 
certainty of proof than is required in civil cases, it probably 
would not be contended that the court committed an error in 
denying the defendant's motion for a new trial upon the ground 
that the verdict was clearly againat the evidence. 

Section 181 of the Penal Code provides: "No person can 
be convicted of murder or manslaughter unless the death of 
the person alleged to have been killed and the fact of the 
killing by the defendant, as alleged, are each established as 
independent facts; the former by direct proof and the latter 
beyond a reasonable doubt" 

Where a jury upon conflicting evidence has reached the 
conclusion that a defendant is guilty and such conclusion has 
been reached upon the determinaticm of which of two sets of 
witnesses they will believe their verdict should not be set aside 
unless the evidence is such as to indicate some misunderstand- 



ing by the jury of the qnefltioiifl inrolved or of the importance 
or bearing of particular facta or that the jory were affected by 
Bome bias or prejadice against the defendant. 

It is arged that alt the circumstances are improbable and 
that the verdict shocks one's sense of justice. It is true that 
the fact that a crime was committed when considered in con- 
nection with the public place in which it occurred — the time 
of day — the bungling manner in which it was done, and the 
smallness of the amount of money which the perpetrator or per- 
petrators could hare hoped to get from the victim is almost 
onbelievabley bnt that the crime was committed is conclusively 
established and by every one conceded. The three important 
witnesses for the prosecution together with the defendant and 
all the other witnessee were present before the jury when their 
testimony was given and snch testimony was discussed before 
them at length by competoit counsel, alert to show to them 
every inconsistency and contradiction therein. If the testi- 
mony of the three most important witnesses for the prosecu- 
tion is true, the defendant is guilty beyond a reasonable doubt. 

It is for the jury, and not for the court, to determine con- 
troverted questions of fact arising upon conflicting evidence. 
(People V. Place, 157 N. Y. 584; People v. Caecone, 185 
N. Y. 317; 20 N. Y. Crim. 175.) 

The jury has found the defendant guilty beyond a reason- 
able doubt and there is no such apparent misunderstanding 
by them of any question of law or fact or of any bias or 
prejudice against the defendant that requires or would justify 
the court in setting aside the verdict as clearly against evidence. 

There are but few questions of law involved in this appeal. 
The defendant's connsel objected to the testimony that was 
given of what was said and done when the defendant was 
confronted with Leonardo at the jail. The defendant had pre- 
viously been told that Leonardo charged him with having 
stabbed Fbelps and he had then denied it It does not appear 



that he had ever been charged by Leonardo personally with 
having done the stabbing until the occaBion at the jail. When 
Leonardo made the statement " That's the man that done the 
cutting," he vaa but a few feet from the defendant and facing 
him. His sbrng of the shonlders may have been his way 
of ezpreeaing that a reply wonld be nseless, or that he was in* 
different. It wonld seem to indicate some knowledge of what 
■ waa said or being done. The extent to which the defendant 
understood English had been shown and he waa in no way pre- 
vented from replying if he desired to do so. The value or 
effect of this evidence was for the jury, but in view of all 
the facts and circnmstances snrrounding the incident it was 
not error for the court to allow it to be received as evidence 
by the prosecution. 

The testimony about an assault upon the defendant's brother, 
about which the defendant complains, was at the dose of the 
evidence stricken from the record on motion of the defendant's 
counsel and by the consent of the district attorney. 

The evidence to the effect that Leonardo told bis bartender 
to notify a person then on Broadway that be waa ready to 
pay his rent and that such person said he would send a man 
for it in the afternoon was not improper in view of the testi- 
mony of the detective that Leonardo and the defendant had 
planned together to commit the crime. The fact that the de- 
fendant was separately tried in no way changes the rule that 
the acts and statem^its of a ooHionapirator are admissible 
against each. (People v. McKane, 80 Hun, 322.) 

Soon after the judgment in this case Leonardo was tried 
upon the same indictment, and upon hia trial the People pro- 
duced Officer Church who had not been sworn upon this triaL 
Church testi6ed in substance that he talked with Phelps 
before he waa taken away in the ambulance; that Phelpa 
said, " The only man in the room was the young man that run 
the place; " that he also said, " I asked him if he stabbed him 



and he said it moat have been him, he waa the only one in the 
room." It was also shown on the Leonardo trial that Phelps 
when he entered the hospital was asked certain questions to 
enable them to fill out the hospital record, and that Phelps 
made statements that were ratered upon such records as fol- 
tows : " Patient was counting money in 228 Broadway in a 
room off the bar; was hit in the head; does not know who hit 
him; saja only one man who was in the room waa the young 
man who runs the place; young man smooth face; thinks 
he has no moatache. He (Phelps) pulled a knife ont of his 
neck and dropped it, when next he remembers the young fel- 
low had bim by the coat and was trying to drag him by the 
coat; be says he got ont of the place then." 

Couuset for the defendant asserts that the testimony by 
Church and the record at the hospital were entirely unknown 
to him at the time of the defendant's trial. He made a 
motion for a new trial upon the gronud that the testimony men- 
tioned constitnted newly-discorered evidence which required 
that a new trial should be had. The fair construction of such 
evidence is that Phelps did not know who hit him, but that 
the only person that he saw in the room was Leonardo. As- 
suming that such evidence could be received on a new trial 
it waa evidence that could have been known to the counsel 
for the defendant if reasonable diligence had been exercised 
before the trial The statement made by Phelps when he en- 
tered the hospital became a part of its public records and 
coidd have been seen by any one representing the defendant 
upon request. Officer Church arrived at the comer of Broad- 
way and Madison avenue a few minutes after the homicide. 
He remained with Phelps until the arrival of the ambulance 
and went in the ambulance with Phelps to the hospital. It 
is allied in the affidavits in opposition to the motion for a 
new trial that the newspapers of Albany published in great 
detail the facts as they were then ascertained in regard to the 



bomicide and oa to what occttrred immediately thereafter and 
that one of such newspapers named Officer Church as one of 
the persons vho was present with Phelps upon the street 
soon after the homicide. And such affidavits further all^e 
that it was common knowledge in Alhany that Phelps had 
made statements in snhstance similar to those given in evi- 
dence on the Leonardo trial hj OfiBcer Church and by the 
physician in attendance at the hospitaL The motion was 
heard before the justice who presided at the trial and he denied 
the same. The facts appearing upon such motion do not re- 
quire a reversal of the order. 

The judgment of conviction should be affirmed. 

Cdllek, Ch. J., Gbat, Haight, Vawn and Webheb, JJ., 

Judgment of conviction affirmed. 



In cases of conspIraiTi vhen the combln&tlon li proved, tlifl sntK 
Bequest acts and declaratloiu of the conaplratore are not received 
as evidence of that fact, bat to abow what waa done and the means 
employed In furtherance of It. and, generallj', those details which un- 
fold its extent, scope and Inflaence upon the public or the indivldnala 
who auOer from tbe wrong. Cuyler v. McCartney, 40 N. T. 222. 

Where Mveral persona are enKaged together In the furtherance of 
a common Illegal design, declaratlona of one confederate, which are 
not narratlvefl of a past transaction bat are made daring the con- 
tinuance of the conspiracy and with reference to, and as part of, the 
general scheme, are competent evidence agalnat the others. People 
V. Flckena, 163 N. T. G76. 

Whenever common purpose or conspiracy by the defendants is 
shown, then acts and declaratlona of any one of them relating to the 
allged offense though In the absence of the others. Is admissible, 
and the acts of one In the same common purpose became the ats of 
alL People v. Baastord, 8 N. T. Crlm. 21». 



Declarstlonfl and RCt> of a co«oiiaplrator, made in fnrtheranM of 
the proBocntlon of tbe common object of the conaplracr, or con- 
atitntlns a port ot the re* geitae of some act done for that pnrpou, 
are the acts and decl&ratlona of all, and are admlasiUe asalnst tbem. 
People T. Murphy, 3 N. T. Crim. 8*8. 

It to not neceaaarr that the persona whose declaratlona are offered 
■honld hare been a party to the original concoction of the frand If he, 
after fall knovledse that It waa committed, attempts to reap the 
beneflts of the frandnknt tranaactloD. Peteraon t. Spear, 20 Pa. 8L 

Bach Go-conspIrator ta bound by declaratlona of each of hU co- 
conspirators done and said dnrlng the contlnnance ot the con- 
spiracy touching the object and condnct thereof, and it Is Immaterial 
at what time he became connected therewith, whether at Its Incep- 
tion, at the rery Instant before the full accompltohment of the pur- 
pose of the conspiracy Just before its final abandonment, or at any 
other time. Blaln v. SUte, 83 Tex. Crlm. £36. 

Grerr act and declaration of each conspirator In furtherance of the 
general design Is, In contemplation of law, the act and declaration of 
all the conspirators, and ts therefore original evidence against each of 
them. Spies t. People. 10 West Sep. 781, 11 N. EL Rep. 866. 

Any Joint action upon a material point or a collection of in- 
dependent but co-operating acts, by persons closely associated with 
eacb other ts sufllclent to enable the Jury to Infer the concurrence 
ot sentiment. IT. S. t. Wilson, 60 Fed. SM. 

Where the particular act of extortion upon which the Indictment 
waa based was done In pursuance of a conspiracy between the de- 
fendant and three others, the acts and declarations ot the defendant's 
confederates, in the execution and furtherance of their common design, 
after the act alleged In the Indictment, are admissible against the 
defendant People v. Hall, Bl N. T. GS. 

Where there to sufllclent evidence to Justify the conclusion that 
dIOerent persons, charged with a crime, were all acting with a com- 
' man purpose and design, although It does not appear that there had 
l>een a prerlons combination or confederacy to commit the particular 
offence, yet the acts and declarations of each, from the commencement 
to the consummation of the offence, are eridence against the othen. 
Eelly r. People, K N. T. B». 



Wbere It appears tb&t a debtor and othen have Joined In a con- 
iplracT to defrand the credtton ol the former bj a frandnlent dls- 
poaltlon or hla propertj. the acta and declaratloiu of the debtor. 
made In the abeence of the others, but in execution of the common 
pnrpoee, and In aid of lt> fnlBlment, are admluible agalnet them. 
Dewey t, Moyer, 72 N. T. 70. 

Where the Kullt of one of leveral defendants. Jointly Indicted lor a 
felony, Is sought to be established by erldence showing, or tending 
to show a conspiracy between him and the others tor the commto- 
slon of the crime, evidence as to acts or statements of the others mnat 
be confined to such statements as were made, or acta done, at times 
when the proofs In the case permit of a finding that a conspiracy 
existed, and where the acts or statements were In furtherance of a 
common design. People v. Kief, 116 N. T. 661. 

Where it Is alleged In the Indictment that persons have conspired 
together to commit an offense, and the proof tends to establish the 
existence of the conspiracy, the acts and declarations ol each ot the 
conspirators are binding npon, and to be regarded as the acts of the 
others, and the question ot their gnllt becomes one Of tact tor the 
Jury. People t. Peckens, 1G3 N. T. G76. 

On trial of a charge of conspiracy to extort money, where the actual 
extortion of a specifled sum Is alleged and proved and a continuing 
design to blackmail Is shown, a letter from one proved confederate 
on trial, written after the date of the specific extortion, but during the 
further carrying out of the conspiracy. Is admissible against each of 
his confederates. People T. Hall, El App. DIv. 67. 

Where there Is suffldent evidence to justify the conclusion that 
different persons charged with a crime were acting with a common 
purpose and design, although It does not appear that there has been a 
previous combination or confederacy to commit the particular 
oOense, the acts and declarations of each, from the commencement of 
the consununation ot the oftense, are evidence against the otbers. 
People V. Van Tassel, 3 N. 7. Crlm. 289. 

The declarations of one K., who was one of tbe conspirators, although 
not a defendant, made during the continuance of the conspiracy and 
for the purpose on the part of the conspirators of carrying the same 
Into full effect, — that they would do the same as they had done la 
the prior boycott of another party, and appeal to the merchants to 
talce their advertisements out of the publliblng company's paper, 
and appeal to subscribers; that if they tiad another battle, the putv 



Uahiiic companr vonld have to par the expenua of the txtrcott,^ 
were admitted In eTldenc« agalnit the the obJectlonB ol the defendants. 
These declarations were made to one B., a workman In the publishing 
compaoT's ofSce, in an Interview between the workman and two of the 
defendants, who had some time before tried to Induce B. to ]oIn the 
couaplracr. Held, that the declarations In question, following efforts 
of a. and K. to win orer 8., mar well be regarded as snpplementaiT 
to thoee eOorts, and so were acts In the prosecntlon of the objects of 
the consplracr, and as such were admissible sgalnst defendants. 
SUto T. OUdden, 6 N. T. Crlm. SSI. 

Btrldence as to the acto of alleged conspirators In procuring and 
flUng in the name of another person, a false claim against the cl^ 
for damage caused by the overflow of a sewer, examined, and held, 
to show an overt act In addition to the conspiracy agreement within 
the requirements of the Penal Code. People v. Htles, 22 N. T. 
Crlm. 9. 

Where it has been shown that a defendant charged with larceny 
agreed with fellow-conspirators to hold money obtained from the com* 
plalnant so as to return It If he threatened to complain. It Is not error 
to admit evidence that one of the conspirators, after his arrest, offered 
to get the money from the defendant If the complainant would not 
lodge a complaint, for the proposal being In accordance with the agree- 
ment of the conspirators, was In furtherance of the conspiracy, or at 
least wss a declaration accompanying and tending to characterise 
acts for which the conspirators were responsible. People v. Weiss, 
23 N. T. Crlm. 140. 

Where directors of a bank are charged with conspiracy to defraud, 
letters or statements by each or any of them to olBcers of such bank 
are held to be admissible against them aU. Reg. v. Brown, T Cos C. 
0. 442. 

To show that the writer was not a participator In the fraud, bat 
was himself deceived, letters written by one defendsnt to another 
during the time when the conspiracy was alleged to eslet, are held 
to be admissible. Rex v. Whitehead, 1 C. C. P. 67. 

As being part of the ret peilac letters written by one defendant to 
another during the time when the conspiracy was alleged to exist 
aT« admissible to dlsprore the allegation of fraudulent conspiracy. 
Zellerbach v. Allenberg, S9 Cal. GT. 

State of mind with respect to subject of sUeged conspiracy, prior 



to Iti &U«g«d formation, mar be ■bovn. D. S. t. Greene, 14S FedJ 

Wbere conaplratorg, In tnrtlienuice of tbelr deilgna, organize an 
aaeoclatlon, eridence of an agent employed thereafter, >ach agencj 
having been shown, Is admissible against his associates as showing 
That he did and said in their absence in fortherance of such design. 
Hckee v. SUte, 111 Ind. 878. 

At the trial of an Indictment for a conaplrac/ to procure persona to 
votes lllegallr at a certain caucus, eridence that trsadalent Totars 
were spoken to by one of the conspirators before all of them had 
come Into the scheme is admissible, In connection with proof that the 
others did come In and br Implication adopted the acts. Com. t. 
Rogera, 181 Mass. 184. 

Where It wai charged that the defendant In order to commit the 
fraud Impersonated a confederate by wearing his clothes, it was held 
proper to abow that the defendant proposed the scheme to a person 
not named In the Indictment People y. Arnold, 4S Mich. S68. 


Acts or statements of one of the defendants prior to the formation 
of the consplracr, or subeequent to its termination, bj the accom- 
plishment of the common purpose, or by abandonment, are not admis- 
sible as evidence against the others. People v. Kiet 126 N. T. 661. 

In no case can acts occurring after the conspiracy is formed be 
referred to to prove the existence of the eonspiracT' People v. Brlck- 
ner, IE N. T. Supp. GZ8. 

Where the evidence Is Insufflcient to prove a conspiracy, evidence 
of the acts or declarations of the alleged coconspirator, performed or 
uttered when the defendant was not present, or, if present, not 
participating therein, or In some manner asaentlng thereto, Is inad- 
missible against defendant People v. Pavllk, 6 N. T. Crlm. 30. 

The acts or statements of one person cannot be used for the pur- 
pose of aHectlng or establishing the guilt of another unless it Is first 
proved, either by circumstances or direct proof, that these persons are 
engaged in some Joint enterprise or object, and are exerting them- 
selves to bring about each a Joint result Where that la the case, 
what one does for the purpose of aiding and promoting the common 
object Is admissible ss evidence against the other. Where such Is 
not their relation, the act, the conduct, or the statement of one has 
DO effect whatever upon the other. People v. Kerr, 6 N. T. Grim. 406. 

Declarations by an accomplice upon a trial of a charge of burglsryt 



iud» tr blm Willie on tbe wkj to tba police ttatlon an InadmlMlbto 
to show that the defendant partlclDftted In the crime. People r. 
Qntnn, S2 N. T. Crlm. TE. 

Act! and declaratlone of a defCmdant are not admlMlble a> acalnit 
hit co4etend«nt where the/ were nude rabwquentlr to the arrest ol 
the latter and therefore after be bad ceased to act In carrTlng ont the 
common purpose. State r. Grant, 86 Iowa, 216. 

Where the charge waa conspiracy to make a fklse arrest, arrests 
made snbseqaentiy to that complained of cannot be shown. State t. 
Davles, 80 Mo. App. 239. 

The admissions of one defendant as to his own Illegal and Im- 
proper conduct cannot be received In erldenoe after his death In an 
action tor oonapIracT against his snrrlTlng c»4efendants. Gaunce 
T. Backhouse, 87 Tex. App. S60. 

Brldence of the acta and declaratlona of one of the alleged con- 
spirators who has been acquitted 1h Inadmtaalble against other de- 
fendants because If the flrat defendant was not a co-consplrator his 
sets and declarations conld not be binding upon them. Paul v. State, 
12 Tex. App. MS. 

After a conspiracr Is established, only the declaratlona of each 
munber which are In furtherance ot the common design can be pro- 
duced In erldence against the other memben. Declarations which are 
merely narratlTe as to what has been or will be done, are incom- 
petent except against the defendant making them, or In whose presence 
they are made. Spies v. People, 10 West Rep. 791, 12 N. B. Rep. 86B. 


Evidence of acts of co-oonaplrators sometlmea Introduced before 
proof of existence of conspiracy under promise of prosecntlon to 
establish the existence of such conspiracy at a later stage of the case. 
Place T. Minster, K N. T. 89. 

If the clrcomstancee ot the case are so pecnllar and urgent as to 
require such a coune, the acta and declarations of a co-consplrator 
may In some Jurisdictions be Introduced in the flrst Instance befors 
proof of the agreement itself. State t. Thompson, 69 Conn. 720. 

But this Is not BO In Mississippi, where the court has declared that 
It Is manlEeatly Impossible to reconcile such a doctrine with the ad- 
mitted principles of evidence or the great object of tbe law, to secure 
» fair and Impartial trlaL Browning v. State, M Miss. 666. 



Nov. 6 1910 


(IBB N. T. 482.) 

(1.) HuBDEB — EnsiiTo SusTAunna Vbbkiot. 

It waa properly left tor the Jurr to M7 whether th« detendant 
iru Kullt7 of the crime of murder with which ha Ib chvKed. He 
hai been found gatUj and the judgment should not be net aaide 
as against the evidence. 

While the prosecution Is bound by testlmonj elicited from de- 
fendant upon bis croa»«xamlnatIon as to collateral facta, yet, 
when the defendant Toluntarlly assumes to make such collateral 
Issue a material one by calling a witness to t«8tlfr with reference 
thereto, he is not In a position to complain that a witness is 
called bj the prosecution to contradict such testimony, psrtfcularly 
when the witness for the prosecution did not give any testlmonr 
in direct contradiction of the witness called by defendant 

(3.) Samk->'Re8 Qestae. 

The deceased was stabbed In rooms occupied by defendant 
Held, that evidence of an exclamation made by him after he had 
reached the street and he was being led away from the Im^ 
mediate scene of the crime was part of the ret geitae. 

Evidence objected to by defendant's counsel and excluded Is 
afterward properly admitted upon his complete, uneaulvocal sad 
Intentional consent that It may be received. 

Defendant's father was In a position, at the time of the homl- 



clde, so that be coald bave kIt^ii aome tMtlmonr reUtlns to the 
occurrence. Held, that It was not error tor the district attoroey to 
call tbe attention ot the Jurors to tbe fact that defendant did not 
call him as a witness. 

Afpsal from a judgment of the Supreme Court, rendered 
January 25, 1910, at an Extraordinary Trial Term for the 
county of Albany upon a verdict convicting the defendant of 
tbe crime of murder in the first degree and from an order deny- 
ing a motion for a new trial 

The facts, eo far as material, are stated in the opinion. 

John H. Gleason and Joseph A. Murphy for appellant 
The admission of testimony sa to declarations of deceased con- 
etitutes reversible error. {Lahey v. Ottman & Co., 73 Hnn, 61 ; 
People V. Del Vermo, 192 K. Y. 470; Wharton on Homicide 
[3d ed.], § 629 ; People v. Shaw, 3 Hnn, 272.) The producing 
of John H. Farrell and hia evidence was highly prejudicial to 
the defendant and constitutes reversible error. (People V. 
Oreenwald, 108 N. Y. 296; People v. De Qarmo, 179 N. Y. 
130 ; People v. Brown, 197 N. Y. 288 ; People v. Molineuz, 168 
N. Y. 264; People v. Webster. 139 N. Y. 73; Cosselman v. 
Dunfee, 172 N. Y. 607; People V. Wolf. 183 N. Y. 475; 
People V. Caseone, 185 N. Y. 317.) The district attorney's 
reference in his summing up to the defendant's father as the 
one living eye witness to this tragedy, who ia not here, waa 
wholly unwarranted and highly prejudicial to the defendant. 
(Tauger v. N. Y. C. B. B. Co., 104 N. Y. Supp. 681 ; Bobimon 
V. Met. St. By. Co., 103 App. Div, 243 ; People v. Hinksman, 
192 N. Y. 421; People v. Wolf, 183 N. Y. 464.) 

Eollin B. Sanford, District Attorney, and Harold D. Alex- 
ander for respondent The statement of deceaaed to Officer 
Church waa properly admitted as part of the whole transaction. 
(People V. Del Vermo, 192 N. Y. 470; Comm. v. Wemtz, 161 



Penn. St. S91.) Defendant's failure to call his father was 
etronglj corroboratire of the People's witnesses and was aus- 
picious and inferential, and the People had the right to com- 
ment on it. (Gordon v. People, 33 N. T. 509; Bleeeker v. 
Johnson, 69 N. T. 311 ; Minch v. N. 7. & Q. Co., 80 App. Dir. 

Ckabx, J, The defendant waa jointly indicted with 
Dominico Ferrara and charged with the crime of murder in the 
first degree, committed October 2, 1909, by stabbing George E. 
Phelps and inflicting upon him such wounds as to result in his 
death. Ferrara was separately tried and found guilty. An 
appeal was taken from the judgment of conviction, and this 
court has a£Brmed hia conviction, and the opinion in connection 
therewith is handed down with the opinion in this case. We 
refer to the opinion in that case {People v. Ferrara, 199 N. T. 
414, 26 'N. Y, Crim. ante for a description of the building oc- 
cupied by the defendant, and of what was found in it after the 
homicide ; also to the evidence mentioned therein bo far as it 
was given by the surgeon who made the autopsy upon Phelps ; 
the defendant's barkeeper; the man who waa passing the saloon 
at the time of the homicide and the car inspector, all of whom 
were sworn on this trial and testified substantially the same 
as they severally testified on the trial of Ferrara. The theory 
of the prosecution on this trial is not changed from the theory 
as stated in the opinion in that case. 

The defendant in this case admits, as we will state in greater 
detail herein, that he was present in the storeroom when the 
crime was committed, but he testified that he is wholly innocent 
of any crime in connection with the occurrences, and he further 
testified that the crime was ectuaUy committed by Ferrara. 

The proceeds of the lodgings had not been sufficient to give 
to the defendant and his parents the money required or needed 
by them. It appears that the defendant pawned his watch and 



ebam on the previous July 3, and with the amoaot received 
purchased a pair of shoes. On July 9 be pawned for his mother 
a watch, two chains and several rings, npon which he received 
$40 and gave it to her. On September 7 he pawned a ring of 
his and also a watch left by a lodger, npon which he received 
$2.75. Ko part of the property was ever redeemed. On Sep- 
tember 27 bis mother wrote him from Oawcgo, where she was at 
that time, as follows : " I have received a letter from your 
father in which he tells me that you have not even a cent. I 
will send the money and when I will send you the money I want 
the jewelry sent" Ko money was received by him from his 
mother, and he testified that when about to go into business on 
October 1 he bad about $20. A brewery obtained for him a 
liquor tax certificate, became responsible for the bond, and put 
in the bar and floor flztures and did the plumbing work, and 
trusted him for it. The defendant put in some glasses and other 
things, and obtained thirty days' credit for their payment. He 
bad to pay $10.80 to have the gas meter put in. The brewery 
furnished him the beer, and he purchased the liquors and cigars 
on credit He testified that he had $95 toward the rent on 
Friday, but how he obtained it does not appear. He says the 
receipts of the bar Friday night were $12. On Saturday he 
bad to pay the landlord $113. He says he expected a bill that 
day from the brewery, and that he then had a bill to pay for 
liquors of $18, The prosecution contends that the defendant's 
financial necessities led him to commit the crime. 

The prosecution, among others, called as a witness a young 
man who worked for the defendant. He testified that he 
was in the barroom Saturday afternoon when Fhelps came in 
and at that time there was no one there except the defendant 
and bis father ; that the defendant sent him away on an errand 
and that be returned in twenty or twenty-five minutes ; that 
there was no one in the barroom and he went into the sitting 
room ; that the defendant's father was in the sitting room and be 



asked liim where Vincent was and he replied that he didn't 
know ; that be aat down bat got np and started upstairs ; that he 
got as far as tbe hall and saw the defendant standing in the door- 
way of the storeroom ; that tbe door was about half open and be 
heard someone counting money; that be asked tbe defendant 
what was the matter and that be replied " nothing; " and that 
he then went back to tbe sittingroom. He further testified : " I 
didn't have any more time to get back where bis father was and 
sit down on a chair until Vincent's father jumped up and said 
' Fight,' and he went out through tbe saloon and I followed him 
and got as far as tbe end of the bar; then Phelps staggered out 
into tbe hallway ; and when he staggered out in the hallway why 
Jim Hines came in with a pail for a pint of beer. I seen Phelps, 
he was all covered with blood and Vince bad bold of him. He 
had hold of his coattail and bad him up bere(ind.) along in the 
back. Phelps was in front. His coat was ripped clear up 
the back. They were right in tbe doorway of the poolroom when 
I first saw them. Phelps started out in tbe hallway and be put 
bis arm — we had a little office there — like that, to pull himself 
up, and then he reached over and got bold of the side of tbe 
door, tbe saloon door that comes out of the hallway into the 
saloon, and be reached over and got hold of it and pulled himself 
up. I heard him boiler ' Murder ' and he said ' Don't kill me 
and I will give you the money.' * * • They came right 
across the hallway into the saloon and ri^t out through the sa- 
loon and right out to the Broadway door. Jim Hines went oat 
right ahead of bim. That is we all went out beside Phelps ; 
Pbelpa went out right after Jim Hines ran out. Vincent went 
as far as the Broadway door and he let loose of bim, and he went 
back. The Broadway door was open. Vincent went back into 
tbe poolroom and through the poolroom and around where that 
blind stairway is. I heard the water running in there. He had 
blood on his face and his hands. I didn't have any conversa- 
tion with Vincent after that, only there was an Italian next door 



and I lieard her asking something of him ; I don't know what 
she asked him. They talked in Italian. When this lady talked 
to liini he turned around to me and said, ' You don't know noth- 
ing about it ? ' I said, ' No.' " He also testified that he did not 
hear the deferdant say anything during the occorrences related. 

Hines, the man referred to by the defendant's employee men- 
tioned, testified that he came into the barroom about half-past 
two and that he saw Phelpa coming out of the storeroom ; that 
defendant was holding him ; that Phelps was hollering 
" Murder ; " that Fhelps went out of the door and the defend- 
ant went back in the kitchen and gave him (the witness) a 
shore up against the bar and said, " Get out of the way," and 
that be was frightened and ran out. 

A young man who had been a lodger at the defendant's house 
and was familiar with the rooms went in them a short time 
after the homicide and he testified that he saw a knife with 
a blade about five inches long lying in the west end of the hall 
in a little space under the stairs. He further testified that he 
was at the police station when the defendant was there and that 
he saw the defendant putting a knife bolder down inside his 
trousers and that a short time after when the defendant walked 
down to the desk at the station the knife bolder dropped out of 
his trousers upon the floor and was picked up by one of the 

At the police station the defendant said that he was alone in 
the room with Phelps and had paid him the rent money when a 
fellow ran in through the hall from the street and grabbled 
the money and stabbed Phelpa and ran out through the ball 
again into the street He further testified that he did not know 
the man and had never seen him before. 

Officer Church, who at the time of the homicide was on duty 
in that part of the city including the comer of Broadway and 
Madison avenue, testified that be was at the defendant's saloon 
at two o'clock on Saturday to see why his license waa not framed 



and in the wiodow where it could he seen. It sppeats that the 
errand upon which the defendant's employee waa sent ahout two 
o'clock was to get a frame into which to put the license. The 
officer mentioned further testified that he arrired at the saloon 
after the homicide ahont fifteen minutes to three ; that he found 
Fhelps covered with blood leaning against a building across 
the street from the saloon; that he talked with him, and that 
Phelps said, " The young man that run the place was the only 
one in the room with him," and witness asked him if he (the 
young man) stahbed him, and that Phelps said : " It must bare 
been him. He was the only one in the rocon." 

The defendant's counsel cross-examined such officer at length, 
and in answer to questions the officer testified that Phelps said, 
" They got his watch, his money, and his bills and hie hat." 
'And he further testified that he went with Phelps in the 
ambulance to the hospital, and that on the way to the hospital 
he questioned Phelps further, bnt did not get' any other reply. 
In answer to further questions by the defendant's counsel it 
appears that at the hospital Fhelps made a statement in the 
presence of the physicians and nurses which was taken in writ- 
ing by one of the physicians. One of the attending physicians 
at the hospital testified that he heard the statements made by 
Phelps and transcribed them on a regular sheet to be filed as a 
part of the hospital records. The statement so transcribed is 
as follows: "Patient was coimting money in 228 Broadway 
in a room off bar ; was hit in head. Doesn't know who hit him. 
Says only one man who was in the room was the young man 
who runs the place ; young man, smooth face ; thinks he has no 
mustache. He (Phelps) pulled a knife out of his neck and 
dropped it ; when next be remembers the young fellow bad him 
by the coat and was trying to drag him by the coat He says 
he got out of the place then." 

The defendant was sworn in his own behalf and testified 
that Phelps came for the rent about nine o'clock Friday mom- 



ing; that he didn't pa; it because he didn't have all the 
money; that he told Phelps to come the next day; that oa 
the same Friday another person came to collect the rent and 
that he t«ld him to come the next day; that about noon on 
Saturday he saw the owner of the property on the street and 
told his barkeeper to tell him to send a man for the rent; 
that between two and three o'cloick Phelps came and they 
walked inside the storeroom; that behind the door was the 
little de^ ; that he pat the money on the desk ; that Phelps sat 
down and commenced conntiug the money. The defendant's 
account of what then occurred ia as follows: " We had about 
over half the amount counted and all at once I see one hand 
rush in quick, you know, and Mr. Phelps grabbed Ms bend 
and I turned around at the same timc^ too, and I seen be had 
in the hand, I don't know how many inches, a knife, and 
stick the man, you know the same time I turned around he 
stick him, and I got afraid. Well, I don't know; I couldn't 
move myself. I went under the table, and when I went under 
the table Phelps the same time got one side and he kicked me 
and tnmed me around and I went under the table, and while 
I turned around to get op again the fellow run out. 

" (Witness stands up.) When I got up I turned around 
(illustrating) and he went out, and I went for Phelps and got 
him from behind and tried to lift him up, and of course I 
couldn't lift him up, but I help lift him up. When I raise 
him one foot slip and all the balance was on me, and he made 
a little move and his foot brought him up, and after that I 
got him out to the door near the office and he wanted to go 
out through the hall and he got weak there and be got bold 
of the frame in the office to go out ; I didn't want to let him 
go ont throng the office, outside throu^ the hall; well, he 
got weak there and I done the best I could ; I had him at the 
waist right there (ind.) and I tamed around and brou^t him 
in the barroom, and then he didn't want to stay any longer in 



the barroom, he wanted to go out. I was hoMing him and 
he waoted to go out; I didn't want to let him go out, out- 
side; I don't know; he carried me with him outside. • * • 
I didn't grab the man myself because I couldn't; I was 
afraid; the position I was in I had to get out of the way. 
When I got up, and before I took hold of Mr. Phelps, I saw 
the mao, but he ran out and he pointed his finger to hia nose ; 
I understand what that means, to shut up." 

He further testified that the man was Ferrara; that at first 
he denied knowing the man, because he was afraid of the 
Ferraras if he told the truth about the occurrence; that he 
talked with Perrara two days before about the amount of bis 
rent, and that about an hour before the homicide he saw 
Ferrara alone on the comer outside the saloon; that the knife 
shield produced in evidence he picked up from the floor of 
the storeroom after the homicide and put it in his coat pocket, 
and that it fell from his coat pocket when he was in the police 
station and not from his trousers ; that the lodgers came down- 
stairs and that the hall was full when he left Phelps on the 
sidewalk; that he laid the hat on one side and put the eye 
glasses in it. Neither the defendant's father nor any of the 
lodgers that came down into the hall were sworn. 

The defendant, referring to the hole below the floor in the 
backroom, testified that he dug it about two months before 
October 2, because the water rent for his house was so much 
that he thought that if he dug the hole he might find that the 
pipe leading to certain closets on an adjoining property con- 
nected with his pipes in such a way that the water passed 
through bis meter. He further testified that be did not find 
any water pipes when he dug the hole, and that he left the 
hole as he had made it. 

It appears from other testimony that there had been some 
objection to the amount of his water tax, but the diagram in 
evidence does not indicate that a hole dug in the soil at the 



place wbere it was dug would probably result in finding sach 
pipe if it existed. 

The defendant also called tbe two women that were gwom 
on behalf of the proBecution in the Ferrara case, and they 
gave testimony substantially the same as the testimony given 
by them in that case. 

We are of the opinion that the evidence in this case was 
properly left to the jury for them to say whether the defend- 
ant was guilty of the crime beyond a refuonable doubt. They 
have found the defendant guilty and the judgment should 
not be set aside as clearly against the evidence. 

The defendant's counsel calls our attention to certain excep- 
tions taken by him to rulings of the court during the trial 
which he urges were prejudicial to the defendant and that 
require that he should be given a new triaL 

First. The defendant upon his cross-examination was inter- 
rogated by the district attorney about certain jewelry and he 
testified that it was owned by his mother and that he pawned 
it for her on July 9. After referring to a cameo ring, a part of 
such jewelry, be testified that he did not know that engraved 
on the inside of it are the initials " J, H. F." He further 
testified that he heard that John H. Farrell's place, which is 
about a block end a half from the Leonardo building, was 
burglarized and that jewelry was taken therefrom on Alay 31, 
1909 ; that be did not steal the ring and that his mother wore 
the ring mtmths before May 31. 

The prosecution was bound by the testimony so elicited upon 
such wjlateral facts. (People v. Oreenwall, 108 N. T. 296; 
People v. De Oanno, 179 N. T. 130, 18 N. T. Grim. 480; 
Potter V. Brovme, 197 N. T. 288.) 

The defendant's counsel was not content to leave the testi- 
mony upon such collateral laiatters as it then stood, but he 
called the defendant's mother as a witness and she testified 
in answer to questions put by him that she owned the cameo 



ring mentioned and that she purcliased it of a lodger at their 
hoase about six and a half months before it was pawned. 

After the case for the defendant had been closed the prose- 
cution called John H. Farrell in rebuttal and he was asked a 
question as follows : " Q. Did anything occur at your place 
of business sometime this year out of the ordinary! 

" A. Well on the Slst of May ." 

The defendant's oonnse), interrupting, said : " I object to 
this as incompetent and irrdevant and proving or attempting 
to prove another crime not alleged in this indictment and as 
inadmissible under this indictment, and I make the objection 
only for the purpose of saving the defendant's legal rights." 
And the district attorney replied, " Very well, we will pass 

Thereafter the district attorney asked the defendant other 
questions as follows : " Q. Do yon recognize the ring with a 
cameo ! 

" A. Yes, sir. • * * 

" Q. How do you recognize it ? 

" A. It has ' J. H. T.,' my name, on it" 

The defendant's counsel then said : " I object to it as incom> 
petent, immaterial and inadmissible under this indictment," 
and the district attorney replied, " We will pass it then," and 
the court said, " It is passed and not in." After a further 
statement by the defendant's counsel the court again said: 
" He has passed it. It is ont." 

The rule is well settled that a party cannot contradict testi- 
mony elicited by him on a collateral matter, and if the defend- 
ant's counsel had not called his mother to give affirmative 
evidence of her ownership of the ring there would have been 
no jizstification for calling Mr. Farrell as a witness. When 
the defendant called his mother and questioned her in r^^d 
to the ownership of the ring, he voluntarily assumed to make 
the cdlatera) issue a material one. The prosecution called 



Farrell for the apparent pnrpose of contradicting tike defend- 
ant's mother and of showing that he was in poflflession of the 
cameo ring until the 31st of May. The question before us is 
not as to what ruling the court should bare made to objec- 
tions to questions to Farrell relating to bis ovnership or pos- 
session of the ring but whether the defendant has been preju- 
diced by reason of the prosecution calling Farrell as a witness 
and asking him the questions quoted. 

In view of the position taken by the defendant's counsel in 
regard to such collateral issue, he is not now in a position to 
complain because the proeecution called rarrell, particularly 
as Farrell did not give any testimony in direct contradiction 
of the testimony given hy the defendant's mother. {Bloatom 
T. Barren, 87 K. T. 484, 438.) 

Second. The testimony given by the car inspector as to what 
Phelps said to him and in his presence was objected to <m the 
part of the defendant's counsel upon the grounds that such 
testimony is hearsay, incompetent and inadmissible, and it was 
received subject to such objections and exceptions. 

The testimony so given by him was a mere statement of 
facts that at the close of the case were conceded, except the 
statement that Phelps said "The receipts, the receipts, the 
receipts are gone," and such statement was an exclamation 
made by Phelps as he was being led away from the immediate 
scene of the crime and as he opened his coat and put his hand 
in his pocket. Such testimony was a part of the res gestw 
within our decision in People v. Del Vermo (192 N. T, 470). 
This court in that case carefully considered the question as to 
what evidence should be received as a part of the res gesta, 
and it ia not necessary to discuss the question further, so far 
as it relates to the testimony of the ear inspector. 

The defendant's counsel also objected to the testimony given 
by Officer Chnrdi as to what Phelps said to him about fifteen 
minutes after the homieide and while he was on the street wait- 



ing for the ambulant, upon the ground that such evidence is 
incompetent, improper and hearaaj, and inadmissible nnder the 
indictment. The objections were overruled and the testimony 
was received subject to an exception. On the cross-examination 
of Officer Chnrcb the defendant's counsel asked him what state- 
ments Phelps made to him on the way to the hospital in the 
ambulance, and he also elicited from the witness that Phelpe 
made a statement when he arrived at the hospital and that the 
same was transcribed upon paper and is kept at the hospital 
Subsequently the attending physician at the hospital was called 
as a witness and he was aaked whether Phelps made any state- 
ment at the hospital and he replied in the affirmative, and after 
some discussion a qnestion was asked as follows: " Q. What 
did you do ? " and the record of what then occurred is as fol- 
lows: "Defendant's counsel: I object * * * as some- 
what leading to a professional man in a case of this kind and I 
suggest that the Court confine the learned Assistant District 
Attorney to letting this man state in his own way all that took 
place there unless I object to it. 

" The Court : I will let him answer the question. • * * 

" A. Transcribed them on a sheet, on a regular sheet of the 
hospital paper. 

" Q. What became of that piece of paper J A. It presum- 
ably has been filed with the hospital history. * • * 

" Q. What was the substance of that conversation, the ques- 
tions and the answers t 

"Defendant's attorney: I object to that as hearsay, incom- 
petent and inadmissible under the indictment, because it can- 
not be any part of the res getta; not made at the time or 
place but several — but several hours, or at least an hour after 
the alleged occurrence and after this man had been removed 
and before it is shown what occurred at the hospital, what 
condition he was in, what treatment, if any, he had received 
or anything as to his atat^ physical and mental, at the time 



that thia d&imecl statement was made, and I deaii^ to ask the 
doctoi at this stage a few prelimioaiy questions. * * * 

" The Court : What do you say as to its being competent 
to corroborate the witness you hare just been cross-examining i " 

There was then some further discussion about the proposed 
evidence being in the nature of an ante-mortem statement, and 
the court said : " It would be excluded for that purpose, it is 
not offered for that purpose and I think it will have to be 
excluded as a part of the res getta." The district attorney 
then excused the witness. That would have ended the testi- 
mony of the hospital physician but the defendant's counsel 
concluded that he preferred to have the statement in evidence 
and said : " Of course, if your Honor please, there are trying 
situations which grow up in a case when it becomes necessary 
for the attorney for the defense and for the prosecution in 
order to save the rights of clients at a futnre day or time, it is 
necessary to have legal rulings in the case and exceptions. 
» • * This case has been no exception on our part or on 
the part of the district attorney. I think in view of the situ- 
ation and all that snrrounds this case that everything that 
occurred that may possibly throw any light on this case shall 
be given to these men (ind. the jury). I, therefore, consent 
that he go on with this witness." 

Another discussion occurred between the court and counsel 
and it was agreed that the written statement on file at the 
hospital should be received in evidence as the statement made 
by Phelps. The defendant's counsel then, summing up his 
position, said : " I adhere to that attitude and I consent that 
everything be testified to and that this be received in evidence. 
I also consent that the doctor may read it to the jury now." 
The statement was then read to the jury. 

The statement made by Fhelpa at the hospital, and the one 
made by him to Officer Church, ao far as they pointed to the 
defendant as the person who committed the crime, are sub- 



Btautially alike. Both statements are essentiaUj statements 
of fact and not of conclneions and substantially that Fhelps 
did not know who hit him, bnt that the defendant was the 
only man in the room. If the defendant was the only man in 
the room when Phelpa was hit no other person could have 
committed the crime and the asserted conclusion in the state- 
ment to Officer Church is a matter of course. 

The evidence of the physician as to Phelps* statement at 
the hospital was taken after the court had decided in the 
defendant's favor excluding such testimony. Such statement 
cannot fairiy be said to have been in explanation of the state- 
ment made by Phelps to Officer Church or to have been required 
simply because the jury might draw an inferenoe against the 
defendant if his counsel objected to the receipt of such testi- 
mony. Phelps' Btatement to Officer Church was already in 
evidence and it included facts that directly charged the defend- 
ant with being the one with him when the crime was com- 
mitted. Such testimony had been received subject to objections 
and exception in a way that the defendant could avail himself 
of it upon appeal if such ruling was erroneous. A more in- 
criminating statement by Phelps at the hospital was not to have 
been anticipated by eoimsel or assumed by the jury. There 
was at that time no force or reason that compelled the defend- 
ant's counsel to consent that the evidence be received. His con* 
sent was on its face, and, in fact, complete, unequivocal and 
intent ionaL 

It is not necessary to consider whether the statements by 
Phelps to Officer Church were a part of the res gestae, because 
the jury had before them by consent similar testimony, and 
an error, if any, in the admission of the testimony of Officer 
Church was cured. 

Third. It is claimed that the defendant was also prejudiced 
by roason of the district attorney calling the jurors' attention 
to the fact that he did not coll his father as a witness. It 



woold be natural to eappose that the def^tdaBt could hare 
prodoced his &ther aa a witneoB if be had so desired, and it 
appears that his father was in a poeitioa at the time of the 
homicide bo that be conld bare given stnue testimony relating 
to the oocnrrence. 

It was not error to call that fact to the jororB* attmtion for 
their consideration. 

The judgment of convicticai sbonld be affirmed. 

CuixRH, Cb. J., Gbat, Haioht, Vaiiv, WnjjkXD Babtlktt 
and HiscocE, JJ., concor. 

Judgment of conviction affinned. 



ITor. 15, 1910 


<19» N. T. 44«.) 

(1.) HcBiaa — BviDEKCB BvmcxKwi to ScBTUit Vebdiot, 

On examination ot tbe record on the trial of defendant for 
homicide, held, not only to there evidence to snataln the verdict 
of the Jury, but the verdict was right; that defendant killed hto 
wife with a deliberate and premeditated design to effect her death, 
and at the time ot auch killing he knew the nature and qnalltr 
of the act and that It was wrong. 

— AniTUsmiLrrr or Ethkhcx Sua- 

The defendant pleaded " not gntltr, on the gronnda of Insanity." 
For the purpose of auatalnlng this defense a witness was called to 
testis that, while on a visit to his father, defendant " took a revol- 
ver and some money." It appeared on cross-examination that " he 
took It ont of his father's trunk." Held, that It was not error tor 
the court to Inquire whether It was taken by bis father's per- 
mission since tt was proper to ascertain the nature of the act 
which It was claimed tended to show defendant's Irresponsibility. 

(S.) Saks — WHnr TssTiHOifT or Phtsioiaii rot Psiviuwid— Codi 
Ctt. Pbo. Sbo. 834. 
The testimony of a physician was not privileged by the Revised 
Statutes and Is not privileged by the present statute, except when 
bis Information to "acquired In attending a patient In a profes- 
sional capacity," and where bucIi Information "was necessary to 
enable him to act In that capacity. The burden to upon the 
party seeking to exclude the testimony of a physician under 
section 834 of the Code of Civil Procedure to bring the case within 
Its provtolona. 

(«.) Bamk. 

A physician was appointed by the court on application ot de- 



fendant'fl connsel to examine defendant as to bii lanltT' Tlte 
phnlclsn waa not called bj defendant. He Ta> called t^ tlie 
proaecotion and was alloired, under defendant'! objection, to 
tectUy tliat he bad made examinations of the prisoner. He was 
not allowed to testlfr further as to any material tact HeW, no 

Appeai. from a judgment of the Supreme Conrt, rendered 
October 27, 1909, at a Trial Term for the county of West- 
chester upon a verdict convicting the defendant of the crime 
of mnrder in the first degree and from an order denying a 
motion for a new trial. 

The facts, so far as material, are stated in the opinion. 

Edward A. Scott for appellant. The verdict was against 
the weight of evidence and justice requires a new trial he 
granted. (People v. McCann, 16 N. T. 58 ; People v. Taylor, 
138 N. Y. 8Q8; People v. Ferraro, 161 N. Y. 365; People v. 
MertT^ola, 113 App. Div. 488.) The calling of Dr. Schmidt 
as a witness hj the prosecution, even though he gave no testi- 
mony, was a grave and prejudicial error. (Code Civ. Pra 
§ 834.) The court committed grave and prejudicial error 
in the admission and exclusion of testimony. (Best on 
Evidence, 479 ; Wigmore on Evidence, § 42 ; May v. Brown, 3 
U & C. 113; People v. Molineux, 168 N. Y. 291; People v. 
Shea, 147 N. Y. 78 ; People v. Santagata, 130 App. Div. 225 ; 
People V. Dudenhausen, 130 App. Div. 760.) 

Francis A. Winalow, District Attorney, for respondent. The 
calling of Dr. Schmidt by the People does not present reversible 
error. {Griffiths v. Met. Ey. Co., 171 N. Y. 106; People v. 
Koemer, 154 N. Y. 355; People v. Schuyler, 106 N. Y. 298.) 

Chase, J. The defendant shot and kiDed his wife Septem- 
ber 4, 1909. He was indicted for the crime of murder in the 



first degree and charged with committing the crime from a 
deliberate and premeditated desing to effect deatL On being 
arraigned he pleaded " Not guilty on the gromida of insanit7." 
Upon the trial the jnr; found him gnilty. 

After a careful examination of the record, we are not only 
satisfied that there is evidence to enstain the verdict of the 
jnrj, but that their verdict was right, and that the defendant 
killed his wife from a deliberate and premeditated design to 
effect her death, and that at the time of sach killing he knew 
the nature and quality of the act he was doing and that it was 

The defendant was represented on the trial by able counsel 
The charge of the court to the jury was impartial, and to it no 
objection or exception was taken by the defendant. The judg- 
ment of conviction must stand, nnleas some ruling was made by 
the court during the trial that was erroneous, and by which the 
substantial rights of the defendant were prejudiced. 

We will refer briefly to the rulings of the court of which the 
defendant's counsel senously complains. 

The counsel for the defendant called a witness by whom he 
attempted to show that the defendant prior to the time of the 
homicide did acts and made statements that were irrational. 
At the time referred to by the witness she was living with 
the defendant's father as his wife, and she testified that at one 
time the defendant visited them and she related things that 
were said and done by the defendant at that time, and among 
other things that " He took a revolver and smne money. I 
think it was $76." 

Upon cross-examination of this witness the district attorney, 
after asking a question which was not answered, asked the wit- 
ness the following question: " Q. Did he take money and a 
revolver from the trunk of Austin, his father t *' 

Ko objection was made to this question and the witness 
answered: " He took it ont of his father's trunk." 



The witness was then asked : " Q. With bis father's per- 
mission ! " 

To this the defendant's counsel objected as incompetent, 
irrelevant and immaterial. The objection was overruled and 
the defendant's counsel excepted. No answer was made to 
such question and the court then ashed the witness the follow- 
ing questions, to which the answers appended thereto were 
given without objection, namely : " Q. Did he by his father's 
permission tate it I A. No, sir." 

" Q. His father was not there at that time t A. No, 

" Q. Did he have your permission i A. No, sir." 

It is now claimed that such cross-examination violated tbe 
general rule that when a person is on trial for one crime evi- 
dence cannot be given of a separate and independent crime in 
no way connected with the crime for which he is being tried. 
The defendant's counsel, for the purpose of showing that cer- 
tain acts and conversations of the defendant were irrational, 
and of forming a basis for a hypothetical question to an expert 
alienist, had ascertained from the witness that the defendant 
at the time of said visit to her house bad taken a revolver 
and some money. In determining what influence, if any, the 
fact of taking the revolver and money should be given upon the 
question of the defendant's responsibility for his acts, it was 
material to ascertain whether the witness intended to assert 
that tbe taking was felonious or by permission. The district 
attorney sought to ascertain whether the witness intended to 
assert that tbe revolver and money were taken without per- 
mission of the owner thereof, or of the person in whose cus- 
tody they were left. It is doubtful whether the present claim 
of tbe defendant's counsel was fairly presented to the trial 
court, but that is immaterial, because in any event the cross- 
examination as stated was not a violation of tbe general rule 
mentioned, but related to a proper subject of inquiry to ascer- 



tain the nature of the act which it wae claimed among others 
established the defendant's irreaponsibility for the homi- 

Jnst prior to the trial the counsel for the defendant applied 
to the court, upon an affidavit setting forth that the defendant 
was without means with which to procure the services of a 
physician to examine the defendant as to his sanitj, so that 
his testimony might he used at the trial of the action, and 
asked that a pbTsician be appointed to examine into the con- 
dition of the defendant and attend npon the trial and testify, 
if the defendant so elected, and that the charge for such 
services of the ph^ician he made against the coun^ of West- 

The order was made and the physician so appointed exam* 
ined the defendant, hut be was not called on behalf of the 
defendant as a witness at the trial After testimony as to the 
defendant's sanity was offered the district attorney called said 
physician in rebuttal and he testified that at the request of 
the defendant's counsel he made an examination of the defend- 
ant in the county jail. The defendant's counsel then objected 
to the witness giving any testimony, and a discussion between 
the court and counsel followed, after which the following is a 
record of what occurred : 

" The Court : This is preliminary, and I will overrule the 

" [Exception taken by Mr. Scott.] 

" Q. Did you, Doctor, after seeing Mr. Scott, make an ex- 
amination in the county jail of this coun^ of Samuel Austin, 
this defendant 1 A. I made several examinations. 

" Q. How many examinations did you make ? 

" Mr Scott : I make the same objection. 

" [Objection overruled. Exception taken by Mr. Scott.] 

" A. I saw him four times, but twice I couldn't get any 




"Q. Yon couldn't talk with him, yon mean I 'Ji. Ko, he 

wonld not tallc to me. 

"By Mr. Davia: 

"On the first occasion did any one accompany yoaf A. 
Yes, Mr. Scott 

" Q. What examination did yon make of the defendant in 
the presence of Mr. Scott on the first visit ? 

" Mr. Scott : Objected to as immaterial, irrelevant and 
incompetent, particularly at this time, on the ground that this 
is a privileged commnnication ; it was an examination made 
on the order of this Court, and any examination he made of 
this defendant is entirely privil^;ed. * * * 

" The Court : I will sustain the objection. I am not entirely 
satisfied that my ruling is right, but I shall give the defendant 
the benefit of my doubt at this time." 

No evidence whatever was given by the witness of any 
personal examination of the defendant or of any conversations 
had with him, and the witness was not asked and did not express 
any opinion as to the sanity or insanity of the defendant The 
testimony of a physician was not excluded at common law. The 
confidences between a physician and patient were first pro- 
tected from involuntary exposure in this state by the Revised 
Statutes, which provided : " No person duly authorized to 
practice physic or surgery, shall be allowed to disclose any infor- 
mation which he may have acquired in attending any patient, 
in a professional character, and which information was neces- 
sary to enable him to prescribe for such patient as a physician, 
or to do any act for him, as a surgeon." (R. S. part 3, ch. 7, 
tit 3, art. YTII, § 73.) 

The revisers in their notes, referring to the section quoted, 
say: "Unless such conversations are privileged men will be 
incidentally punished by being obliged to suffer the conse- 
qnen<»s of injuries without relief from the medical art, and 



without couTiction of any offense. Besides, in anch cases, 
during the strug^e between legal duty on the one hand, and 
professional honor on the other, the latter, aided by a strong 
sense of the injustice and inhumanity of the rule, will, in 
most cases, furnish a temptation to the perversion 
or concealment of the truth, too strong for human resist- 

The testimony of a physician was not privileged by the 
Revised Statutes and is not privileged by the present statute 
(Code Civ. Pro. § 834), except when his information is 
" acquired in attending a patient, in a professional capacity," 
and where such information " was necessary to enable him to 
act in that capacity." 

This court has frequently held that the burden is upon the 
party seeking to exclude the testimony of a physician under 
section 834 of the Code of Civil Procedure to bring the case 
within its provisions. (People v. Schuyler, 106 N. Y. 298; 
People V. Koemer, 154 N. Y. 355 ; 12 N. Y. Crim. 503 ; Fisher 
V. Fisher, 129 N. Y. 654 ; OriffUha v. Metropolitan Bt. Ry. Co.. 
171 N. Y. 106.) 

It is clear from the statute itself and from the authorities 
that if the physician never attended the defendant in a pro- 
fessional capacity and never obtained information from him to 
enable him to prescribe in such professional capacity, he can 
testify the same as any other person. In such a case the seal 
of confidence existing by virtue oi the statute between physician 
and patient and made necessary to obtain the fullest information 
in no way applies. 

It does not appear in this case from anything before the 
court that the physician by what he said to the defendant led 
him to believe that he was there to prescribe for him, or that 
the defendant by what was said by the physician was led to 
accept him as a physician and consequently to disdoae to him 



information that perhaps would not otherwise have been given, 
as in People v. Stout (3 Parker's Crim. Eep. 670). 

Where a phjaieian is sent to a jail hy the district attorney 
to make an examination of the prisoner's mental and physical 
condition, the relation of patient and physician as contemplated 
by section 834 of the Code of Civil Procedure does not exist and 
the prisoner is not thereby compelled to furnish evidence against 
himself. (People v. Kemmler, 119 N. Y. 580; People v. 
Slitiey. 137 N. Y. 570, 580; PeopU V. Hoch, 150 N. Y. 291, 
303; 11 N. Y. Crim. 488.) 

In People v. Schuyler (supra) a physician was called as a 
witness for the People, who was employed by the board of 
supervisors of the county as tbe jail physician and as such had 
medical chai^ of all prisoners in the jail. The defendant 
was confined in the jail for six months and tbe physician 
examined the defendant at the request of both parties. It 
did not appear that the defendant was at any time sick during 
the six months, or that the witness was called to attend npon 
or prescribe for him as a physician. The physician testified 
in answer to a hypothetical question as to the defendant's 
sanity and it was held that the evidence was competent even 
if tbe witness was influenced by seeing the defendant while in 
the jail. 

There is nothing disclosed in the record in this case to show 
that the examination which the physician made of tbe defend- 
ant in tbe presence of his counsel was not competent or that 
it was privileged by reason of section 834 of the Code of 
Civil Procedure. Tbe fact that the witness was called and 
asked certain preliminary questions as disclosed, if objection- 
able for any reason, was clearly not objectionable so long as it 
did not appear that a full disclosare by him of what he saw 
and heard while examining tbe defendant under an order of 
the court was not of itself objectionable. 

2^0 error appears in the trial of the case to the prejudice 



of the defendant and the judgment of conviction should be 

Cdllen, Ch. J., Haioht, Vawn, Weeiteb, Willaed 
Babtlett and Hiscoce, JJ., concur. 

Judgment of conviction affirmed. 



SectioD 834, Code CIt. Pro. la applicable to criminal actions under 
Code Crlm, Pro. Sec. 63B. The People v. Murphy, 101 N. Y. 12C 

The prohibition Includee Infonnatlon received through the sense of 
sight as well as that communicated through the ear. Qrattan v. Met 
Life Ins. Co., 80 N. T. 2S1. 

The object of the statute prohibiting the disclosure ol professional 
Information acquired by a phrslclan In attending a patient Is to 
protect the latter, not to shield one charged with his murder. Plerson 
V. The People, 79 N. T. 421. 

A physician called In consultation Is within the prohibition. Renl- 
hen V. Dennon, 103 N. T. &73. 

The prohibition does not relate to Information obtained by him or 
any other way than on attending his patient Fisher v. Plaher, 129 
N. T. 664. 

Prohibition extends to non disclosure of Information of the existence 
of an aliment, though not the subject of hia attendance or treatment, 
acquired through examination of patient In attending him In a pro- 
feeslonal capacity. Nelson v. Village of Oneida, 156 N. T. 219. 

As to the admlaslblllty of statements made by defendant to medical 
expert who examined him during the trial and subsequently related 
them to Jury. See People v. Furlong, 187 N. T. 198, 20 N. T. Crlm. 

Failure of party on Civil Trial, to object to prohibited testimony 
of Physicians, precludes him from objecting to same evidence In sub- 
sequent criminal trial People v. Bloom, 193 N. T. 1. 




Tbe objection can onlr be waived bj the patient hlniwlf, Iibi exec- 
utor or administrator maj not do w. Westover v. Aetna Llle Ina. 
Co., » N. T. G6. 

Where the prohibition hu been waived. It cannot be recalled. Ho- 
Elnne7 r. Grand St, 104 N. T. 362. 

The calling of a phTBlclan as a witness by his patient Is of Itself 
an express waiver. AlberU V. N, T. L. B. A W. R. R. Co., 118 N. T. 77. 

The phralclan mar testlfr •■ to the dates and niunber of calls. 
Patten v. U. L. ft A. Assn., 133 N. T. ISO. 

Waiver nuder Sec. S86, Code Glv. Pro. of provisions of Sec. 8S4 
relating to patients' secrets, bj taking phTBlclans deposition. When 
such act is equivalent ta waiver on the trial or bj stipulation. See 
CllffoTd V. Denver A O. R. R. R., 1S8 N. T. S49. 

Waiver of provlslona of section. See People v. Bloom, 193 N. T.; 
Holcomb V. Narrls, 136 N. T. SET; Holden v. Hot hUe Ins. Co., 16S 
N. T. 18; Foley v. Royal Arcanum, 151 N. T. 198. 


Burden rests on one desiring to establlah that testimony of physi- 
cian comes within prohibition of Section 834. And where there are 
no facts shown which would warrant the presumption that the rela* 
tlon of physician and patient existed or would Justify the con- 
clusion that such testimony had any relation to profeaslonal treat- 
ment Its exclusion upon the ground that it was privileged Is reversible 
error. Griffith's v. Met. St Ry. Co., 171 N. T. 106. 


A physician cannot be asked, "What opinion do you form, based 
on the general sight of the man before you made an examination or 
before you had any couTersatlon with hlmf" Orattan t. Met Lite 
Ins. Co., 92 N. Y. 274. 

The burden Is on tbe party seeking to exclude a physician's testi- 
mony to show that the Information was acQulred in attending a 
patient In a professional capacity and that It was neconary to enable 
hint to act In that capacity. People v. Schuyler, 106 N. T. 398. 

A physician who baa attended npon deceased In a professional Cfr 
paclty Is not a competent witness for contestants to a will to testify 



from knowl«dce acgalred wblle ao attending. Hatter of Coleman, 
lU N. T. 220. 

Wbere & phpilclan called by a defendant railroad teatlfled that 
plaintiff tbe day after tbe accident called upon and consulted him 
he cannot testify that he conTeraed with him about hla Injnriea or 
made an examination of him. Feeney t. L. I. R. R. Co., 116 N. T. 37S. 

Teatlmony of phralciana or hla certiflcata aa to cause of death of 
patient who haa no knowledge eicept aa acquired In proteralonal 
capacity, la Inadmlaalble. Davla t. Supreme lAdge Knigbta of Honor, 
165 N. y. U9. 





(IM App. DlT. 691.) 

(1.) niBOBT — Tkibd Dmoeek — Faux Eimixs or Books. Fkhal Com, 
Then can be no oonTloUon for forcerr. third deKreo, In wMtif 
Um mitrlM In a book of Mcoanta contnrr to section BIB of tbe 
Penal Code (Penal Law, | 88V) on mera proof that a itatenwnt 
of the financial condition of a copartnerahlp fnmlabed by the 
defendants to a flnancial agencj on which other persons laTS 
credit contained a false statement of the amount of capital stand- 
Ins to the credit of one of the defendants. This la tme, althon^ 
the actual entry of the amoont standtns to the credit of sndi 
partner as made in the partnership books was sreatlr In excess 
of his actual credit 

(1) Sakk. 

The object of section 615 of the Penal Code Is to protect a «or- 
poratlon, assodatlon, partnership or Individual owning books 
from being defrauded by meana of take entries or alterations 
therein, ft la Intended as a protection against domestic or In- 
ternal attack, against treacherr and betrayal from within. 

Apfbal by tbe defendants, Loiiia Brown and another, from a 
jadgment of the Conrt of Gkneral Sessions of the Peace in and 
for the county of New York, entered in the office of the derk of 
said court on the 14th day of Febniary, 1910, convicting the 
defendants of the crime of iargerj in the third degree^ 

Morgan J. O'Brien of connsel [Ovttavua A. Roger* and Saul 
E. Rogera, attorneys], for the appellant Taub. 

Bee note VoL 24-SBl. 



MeyeT D. Siegel, for the appellant Brown. 

Robert C. Tayor of counsel [CAarfea 5. WhUman, District 
'Attorney], for the respondent. 

Clabke, J.: 

The indictment cliargea that on January 1, 1907, the defend- 
ants, being copartners in trade under the firm name of Brown & 
Taub, " with intent to defraud, did felonioufilj make in a cer- 
tain book of account called Ledger, belonging to and appertain- 
ing to the business of the said copartners, and kept by them, the 
said Goportners, in the said buainess, to-wit, on the thirteenth 
page of the said ledger, under the said heading therein as 
follows : L. Brown, Capital Aoct, a certain false entry as fol- 
lows, to-wit: ' Jan. 1 Sunda. $26,345.84,' which said entry then 
and there purported to set forth and indicate, and did in sub- 
stance and effect then and there signify and declare that at the 
ox>ening of the said first day of January, in the year aforesaid, 
the share and interest of the said Louia Brown, such copartner 
as aforesaid, and the net capital and surplus of the said 
copartners then and there invested in their said business, that is 
to say, in the amount of the value of the total assets then 
and there owned by and belonging to the said copartners, leas 
the amount of the liabilities then and there due and owing 
from the said copartnera, and then and there outstanding, was 
twenty-six thousand three hundred forty-five dollars and eighty- 
four cents; " whereas the share in the net capital and surplus of 
said Brown was then far less then the said sum, and was then 
$5,787.22, as the defendants well knew. 

Section 515 of the Penal Code (revised in Penal Law, § 88d) 
provides that " A person who, with intent to defraud or to con- 
ceal any larceny or misappropriation by any person of any 
money or property, either, 1. Alters, erases, obUterates or de- 
stroys an account, bo(i of accounts, record or writing, belong- 



iog to, or appertaining to the bufiiness of, a corporation, assooia* 
tion, public office or officer, partnership or individual; or 3. 
Makes a false entiy in any such account or book of accounts ; or 
3. Willfully omits to make true entry of any material partio- 
nlar in any such account or book of aecounte, made, written, 
or kept by him, or under his direction ; Is guilty of forgery tn 
the third degree." 

The defendants had been partners in business. About the let 
of January, 1807, they employed an accountant to examine their 
books of account and instructed him to open a new set of boc^s 
as of the 1st of January, 1907. He testified: "I was in- 
structed by the defendants to open up the books and was told 
to bring forward some of the information which would form 
the basis of the new books, from the old books. Such matters 
as the inventory of merchandise was not contained in the old 
booka" They gave him as the amount of their inventory of 
merchandise at the close of the year 1906 the amount of 
$49,978.25. This is claimed to have been a false statement. 
The accountant testified that some weeks later they said that the 
inventory figures given on January first were wrong — that the 
correct amount was $25,243.66. The merchandise account did 
not appear in the old books, nor did the item " Merchandise, 
$49,978,25 " appear in the books that were opened. 

Defendants have been indicted because the accountant entered 
in the capital account of Brown the items " Jan. 1, Sunds., 
$26,345.84." It is evident that this is not one-half of the 
merchandise account alluded to, for that would be $24,986.12. 
At the request of the defendants the acconntant made up a state- 
ment of financial condition, dated January 2, 1907, which was 
signed by the defendants and to which the accountant attached 
the following certificate : " I hereby certify that the above 
is a true and correct statement as shown by the books of Brown 
fr Taub." This statement, under the head " Assets," included 
the Item "Merchandise on hand, cost, $49,978.25," aod with 



Other items totaled bb available aaseta $80,881.32. Under the 
head " Liabilities " there were entered " For merchandise on 
hand » • * in transit $24,607.88; * * * bans 
from bank $6,500 ; » * » other obligations $84.76, total 
liabilities $31,192.64. Surplus in bosiness $49,691.68. * * * 
Eqaity in real estate $3,000. * • • ToUl worth in and 
out of business $52,691.68." One-half of the latter aum, that 
is, the amoont entered upon the statement as the total worth 
in and out of the business of the firm, amounts to $26,345.84, 
the precise amount entered in the capital account to the credit of 
Brown as sundries. It thus appears that the financial state* 
ment sent to the agencies was not based upon the item in the 
ledger complained of, but that item was obtained by calculation 
from the statement itself. 

The statement so made np was sent to various commercial 
agencies. The firm continued in bosiness during the yen 1907, 
and obtained credit fnnn various persons in reliance upon the 
statement so furnished. In January, 1908, the defendants went 
into bankruptcy. 

The defendants have been indicted and convicted, not for 
obtaining money, goods or credit npon false pretensea by means 
of the false statement sent out to the commercial agencies 
containing the false claim of possessing on the 1st of January, 
ld07, merchandise of the cost price of $49,978.25, but for 
forgery in the third degree under the section of the Penal Code 
cit^d, because the accountant placed in their ledger an item to 
capital account of $26,345.84, which was not shown to any one, 
and upon the faith and credit of which no one advanced a dollar 
of credit or sold a particle of goods. 

We are of opinion that the proof failed to establish the crime 
charged under the statute relied npon. 

We do not think that the entry of such an item in the capital 
account of one of the partners in the ledger, nnder the circom- 
stances disclosed, ccones within the purview of the statate. 



Reading the entire section, it is apparent that what was aimed 
at was to prevent fraud in the keeping of books by those charged 
with the cQstody and control thereof. As said by the Court of 
Appeals in People ex rel. Hegeman v. Corrtgan (195 K. Y. 1, 
23 N. Y. Grim. 242), alluding to section 515 of the Penal Code: 
" To constitute that offense the false entries or alterations must 
be made ' with intent to defraud or to conceal any larceny or 
misappropriation by any person of any money or property.' 
The entries of which complaint is made at most simply purport 
to show that the loans were made on the date of such entries. 
It may be that these entries tended to deceive any one examin- 
ing the company's books, but they conld in no way operate to 
defraud the company or any one else. Nor had there been any 
larceny or misappropriation which the entries could serve to 
conceal or cover up." 

The object in view in this statute, as it seems to us, was to 
protect the corporation, asaociation, partnership or individual 
who owned the books from beng defrauded by means of false 
entries or alterations therein. The statute was intended to be 
a protection against domestic or internal attack, against 
treachery and betrayal from within, and so read, all of its parts 
are consistent, and the statute itself is reasonable. We do not 
deem it possible to attribute an intent to defraud to the making 
of an entry which was never seen by the parties who gave the 
credit and who had no knowledge thereol Said entry was in 
no way the basis of their action. It must be borne in mind 
that it was the evidence of the persons who advanced credit on 
the faith of the statement which alone was relied upon for 
the purpose of proving criminal intent in the making of the 
ledger entry. The fraud relied upon was the statement issued 
to the commercial agencies, and the evidence was that, relying 
upon that statement, the credit was advanced. It was entirely 
imnecessary to go behind said statement, and it seems to us to 
be an entirely unreasonable and far-fetched interpretation at 



the statute to hold that it could possibly apply to the situation 
disclosed, or that the crime of forgery in the third degree has 
been committed thereunder. 

It follows, therefore, that the judgment of oonTiction should 
be reversed, and the defeadanta discharged 

IiTOKAHAu, P. J., Laughun, Soott and MiLLEB, SS.f oon- 

Judgment lerersed and defendanta discharged. Settle order 
on notice. 



Hov. 16, 1010. 


iHmomzirT— Okasd LABODtr — Not NECssaAMT to State tHAi Pmr 
tBoic Whom Momr waa Taxht was ar Abbooiatioh tm Co» 


As Indictment chuslnc the defendant vltta gnai larcenr fw 
baTlns f«k>nloii>l7 appropriated to Us own hm m dealgnated Kua 
of moner, the property of a party bearlns a corporate name, le not 
defectlre, and, therefore, !■ not demurrable, becatiae It tails to 
state that such party Is an sHocIatloii or corporation. 

People T. Head. 12B App. DIt, 7, 22 N. T. Crlm. 226, afflrmed. 

Appeal from an order of the Appellate DiTision of the 
Supr^ne Court in the fourth judicial department, entered 
Karch 4, 1908, which reversed a judgment of the Ontario 
Coonty Court sustaining a demurrer to and dismissing an 
indictment and overruled such demurrer. 

The facta, so far aa material, are stated in the opinion. 

E. A. Griffith for appellant. An indictment charging lar- 
ceny from a corporation under eection 528 of Bubdivision 2 of 
the Penal Code is fatally defective unless it avers its corporate 
existence. (Penal Code, § 528 ; Cohen v. People, 5 Park. Cr. 
330 J McCamey v. People. 83 N. Y. 408.) 

Myron D. Short, District Attorney, for respondent. The 
organization and corporate existence of the true ovner is not, 
in any case, a necessary allegation of an indictment for larceny, 

See note ToL 22-464. 



□or IB it an esasential element of the crime charged. (Penal 
Code, § 528; People v. Steams, 23 Wend. 634.) 

CuLLEif, Ch. J. The defendant was indicted for grand lar- 
ceny, first d^;ree, for having feloniouslj appropriated to hia 
own use the anm of $738,67, the property of " The People's 
Mutual Life Insurance Association and League." The indict- 
ment was framed under the second aubdivieion of aection 528 
of the Penal Code, which makes embezzlement hy the agent, 
clerk or officer " of any person, association or corporation " 
larceny. The only attack made on the indictment ia that it 
fails to charge that the league was an association or corpo- 
ration. For this all^;ed defect the demurrer was sustained 
by the County Court, but has been overruled by the Appellate 

Under the old rule which prevailed long ago in England, 
which required great particularity in the description of per- 
sons, it was necessary to allege the incorporation of a corpora- 
tion. But that rule has not been generally accepted in this 
country, though there is much contrariety between the decisions 
of the various states. In Illinois, Texas and Alabama it seems 
the absence of an all^ation that the owner mentioned in an 
indictment for larceny is a corporation (when it is such) is 
fatal to its validity. On the other hand, in New Jersey and 
Indiana the exact reverse is held. (Fisher v. State, 40 N, J. 
Law, 169; Johnson v. State, 65 Ind. 204.) Such seems to be 
the law now in California (People v. Henry, 77 CaL 445), 
practically overruling an earlier decision (People v. Schwartz, 
32 Cal. 160). If there is no conclusive authority in this state 
on the question, at least the case of Nodkea v. People (25 N. T. 
380) is very nearly such. That was a prosecution for forging 
an order for goods with intent to defraud the Meriden Cutlery 
Company. There was no allegation as to the nature of the 
company, whether it was a corporation, partnership or otber- 



•■ )] 
wise. Of this tlie court said: "In fltating this mteut to 
defraud, it is sufficient to describe the party intended to !» 
defrauded, with reasonable certainty," and that the description 
in the indictment was sufficient. The only ground on which it 
can be contended that the case is not decisive of the question 
before us is that the court proceeded to say that even if there 
were no snch company the indictment was sufficiently broad 
to reach the individual members under the description contained 
in the indictment "of divers other personB to the jury un- 
known." I cannot find that the authority of this case haa ever 
been qaestioned. In McCamey v. People (83 N. T. 408) the 
indictment charged theft of the property of a corporation, nasi' ' 
ing it, and alleging that it was incorporated under the laws 
of the State of New York. In fact, it was a national bank, 
incorporated under the laws of the United States. It was held 
that the variance was immaterial fts the allegatioo was unneces- 
sary, for the indictment might have stated the true corporate 
name of the owner and stopped there. I construe that as mean- 
ing it was unnecessary to charge that the owner was a corpora- 
tion. It is true that the statement was obiter, for the point was 
not in the case ; but this criticism is equally applicable to the 
decision in Cohen v. People (5 Parker's Cr. Hep. 330), on 
which appellant relies, where it was said that it is necessary to 
allege in the indictment and prove on the trial that the corpora- 
tion was an existing corporation. The indictment did charge 
ownership and the existence of the corporation and, hence, 
there was do question as to its sufficiency presented in the case. 
On the other hand, in People v. McClotkey (5 Parker's Cr. 
Bep. 57) an indictment which charged burglary upon the prop- 
erty of the Oolf Brewery was held sufficient, though it does 
not seem that any objection was taken that the indictment did 
not charge that the Qulf Brewery was a corporation. If in 
thifl state of the authorities we are to consider the question an 
Open one in this court, we Are clear that the rule declared hj 



the Appellate Division is correct It is a logical aeqnence of 
tbe decision recently made by tliis conrt in People v. OiJbert 
(199 K. T. 10; 24 N. Y. Crim. 480). The appeUant in that 
case, having been convicted of murder in tbe first degree, con- 
tended that the indictment was insufficient in not alleging 
that Viola Hn^^, whom it was charged be had killed, vae a 
human being. It was held that the name and surname raised 
a presumption that the person killed was ah uman being. Con- 
versely, as was said by the Supreme Conrt of Indiana in 
Johnaon v. State (ntpra), "when an ideality is referred to in 
a pleading by a name such as is usual in creating corporations, 
and which discloses no individuals, a corporate existence is 
implied without being specially averred." 

The order of the Appdlate Division should be affirmed. 

Obat, Hajqht, Vakit, Willabd Babtlbtt, Hiscook and 
CoLUN, JJ., concur. 




VoT. leio. 


(140 App. DtT. m.) 

X ,^n^iTT— Tw* «_f II PM >PM OoHiMicr or Jnn^ 

Whwe tbe GOflrt frvqncntlr tbrontfiovt Uw trial Intampte 
■wmiwUmi ot wltncHM to «•!( qneaUoBs, apparantlir for the 
•Die porpoM of dlapandns and dlacradlUnx detendant-^tie ad- 
mlnlatratlDii of joatlM raqotna a reraraal In order that defsndaikt 
mar l>aT« a lalr and Impartial trial 

Apfbai. from a judgment ol conviction of tbe Conrt of God- 
eral Sessiona of tbe Peace in and for tbe county of New York 
and from an order denying a motion for a new trial and in 
arrest of judgment. 

MuxsB, J. : Tbe defendant was convicted of stealing a horse 
and wagon; tbe wagon, fresbly painted, was fouid in bis 
possession two days after tbe theft. His defense was that he 
bonght tbe wagon from one BaccbL We sbould have no hesita- 
tion in affirming the judgment were it not for what we consider 
improper conduct on tbe part of tbe trial justice. The court 
frequently tbroaghout the trial interrupted the ezaminatioQ of 
witnesses to ask questions, apparently for tbe sole purpose of 
disparaging the defendant and his witnesses and discrediting the 
defense. One example will suffice. A witness for tbe defend- 
ant had stated that he (tbe witness) knew that the defendant 
was going to be engaged in bnsineaa, whereupon the court inter- 
rupted with tbe question : ** Q. What was the business t Buy* 
ing stolen horses t " That question and namerous others having 
a similar tendency show that tbe case was prejudged by the 

Bee Note, ToL 21-49. 



court, and, in all likelihood, tlie verdict of the jary but reflected 
that prejudgment. The defendant was entitled to have the 
qnestion of hie guilt passed upon hy the jury, but the; were 
not likely to give that question moch independent consideration 
after having been told by all sorts of suggestive questions that, 
in the opinion of the court, the defendant was a horse thief 
and his defense a manufactured one. As a general rule It is 
better to allow counsel to examine witnesses without inter- 
ruption, though at times, in the interest of truth and justice, 
the court may need to interrupt for the purpose of eliciting some 
relevant facts. But the interruptions disclosed by this record 
could have had no such purpose, and they were so hi^Iy prej- 
udicial as to take from the trial even the semblance of judicial 
inquiry. The Court of Appeals has frequently admonished 
prosecuting (Meen with respect to unfair conduct on their part 
in the trial of cases. 8uch conduct on the part of the trial 
judge does incalculably more harm, because it carries weight 
with the jury, who mig^t perhaps pay no heed to improper re- 
marks of counsel We regret the necessity of reversing this 
judgment, but feel that the due administration of justice re- 
quires a reversal, to the end that the defendant may have what 
the law accords him, a fair and impartial trial. The judgment 
and order should be reversed and a new trial granted. 

Inobahau, p. J., CuutKi^ Scott and Dowxino, JJ., con- 

Judgment and order reversed and new trial granted. Settle 
order on notice. 

In the Matter of Joseph J. Madden. — Order afBrmed. 
In the Matter of Lester W. Eisenberg. — Order affirmed. 
In the Matter of Nicholas P. Sinnott. — Order affirmed. 
In the Matter of Albert R. Lesinshy and John H. B. Hanify. 
-—Order afBrmed. 



Hot. leiO 


(69 Ulac. 666.) 

QuaiD Jmr— IitSFBonoiT ov MmunB or. 

Where a convlctloa tor rape was reversed bj tbe Appellate 
DlTlslon, tor the reaaon tliat tlie teBtlmonr of tbe proeecutrlx, wbo 
WBlB only four yeara old, wag not tofflclentlj correborated, an Id- 
specUon ot tbe mlnntea ot tbe grand Jury will be granted before 
the &ew trial to aseertala If any corroboration ot her testimony 
there appeared. 

Motion to inspect the minutes of tbe grand jury. 

Robert W. Fisher, for moticm. 

William T. Moore, DSatrict Attorney, Saratoga Coonty, 

SocKwooD, X William Baldwin was indicted by the grand 
jury of Saratoga county for the crime of assault in the second 
degree and attempted rape. He was convicted upon a trial 
before tbe grand jnry and sentenced to the State prison at 
Dannemora. An appeal was taken from the judgment of con* 
Tiction, and in June, 1910, tbe Appellate Division of the Third 
Department reversed the judgment, remanding all proceedings 
to tbe Saratoga County Court and directing a new triaL It 
seemed to be tbe opinion of the Appellate Division that tbe 
testimony of the fonivyearold prosecutrix was not sufficiently 
corroborated upon the triaL 

See Note, Vol U * <». 



Tlie defendant now moves upon affidavits for an order 
granting him permission to inspect the minutes of the grand 
jury upon which the indictment was based. It is alleged in 
the moving papers that the indictment was not found upon 
legal evidence, and that hj reason thereof the constitutional 
rights of the defendant have been invaded. 

Ordinarily, this court is opposed to the granting of a motion 
for inspection of the minutes of the grand jury, and the denial 
of such motions is sustained by the weight of the adjudicated 
cases and orderly procedure in criminal practice. People v. 
Steinhardt, 47 Misc. 256. 

The papers in this case do not specify with particularity 
the alleged constitutional rig^t of which it is claimed the 
defendant has been deprived, but entirely aside from the 
technical objections the court is convinced that the motion 
should be granted upon the merits. 

The case has been fully tried before a jury, and the testi- 
mony of all the witnesses who were sworn before the grand 
jury has been given in open court. These witnesses have 
been examined and cross-examined. Presumably their testi- 
mony before the grand jury did not differ or at least was 
no stronger against the defendant than the testimony given 
upon the trial. 

This application is to be distinguished from one made after 
indictment and before trial, at which times the practice has 
uniformly been to deny the motion tor inspection of the 

Following the decision of Judge Grain in People v. Teal, 
60 Misc. Bep. 517, and believing that the defendant in all 
justice is, at this time, entitled to inspect the minutes of 
the grand jury, the motion ia granted. 

Motion granted. 



ITOT. 38. 1910. 


(141 App. DiT. 14S.) 

DnonoLT Hodsb— ESnoKTOi or FBOFunoBamr Nrortmiwr to Oortici. 

Appeal troin a jadgment oonTlctlDS tli* OQlandaiit of tlw orlim 

of kMpIss a dlaorderl7 bonae. Erldence examined, and heUt, that 

aHtaov^ the honn vaa Bbovn to be dUorderlj there was no 

competent erldence that the defendant maintained It 

Affeai. by the defendant, Morris Kohn, &om a judgment of 
the Court of Special SessioiiB of the Second Division of the city 
of New York, rendered against the defendant on the 26th day 
of April, 1910, convicting him of the crime of keeping and 
maintaining a disorderly bonse. 

Berberi 8. Worthley, for the appellant. 

Peter P. Smith [John F. Clarke with him on the brief], for 
the respondent 


There is no question raised upon his appeal that the con* 
ditions testified to 1^ the witnesses for the People constituted 
the crime of keeping and maintaining a disorderly place; the 
difficulty is that there is no competent evidence that the defend- 
ant kept and maintsined the place. The <mly testimony to 
connect the defendant with the crime is that of a p(dice officer, 
who testified over the defendant's objection and exception that 

See Note, Vol lS-608. 



he knew tlie defeudaot's connection with the place ; that be was 
proprietor; but being further questioned by his own counsel he 
admitted that he had never talked with tbe defendant about it, 
and that the only way he knew was that be asked tbe bartender 
at this place, 23 Boerum place, borough of Brooklyn, and the 
bartender told him that Mr. Eobn was, and that Mrs. Kohn 
came in and asked him for the keys so that she conld get some 
change, and that he also saw defendant straightening out some 
cbairs. Tfae testimony as to what the bartender told the wit- 
ness was struck out, so that there is barely the assertion of this 
one policeman that he knew that he was proprietor, and this 
was shown to be based wholly npon hearsay evidence. There is 
certainly nothing in the fact that a man's wife came in and 
asked him for tbe keys that she might make change, which would 
show that he was proprietor; he may have had them simply for 
safekeeping for all that appears. Opposed to this testimony is 
the positive testimony of the defendant's wife that " The 
license is in my name. The license has been in my name 
two years come October. I am the proprietor and owner of 
that business. * * * I am the only owner that there is 
to that business. For tbe last two years the license is in my 
name, so I'm in charge and the control of the business. It is 
a fact that I am in control physically j * » * that place 
belongs to me. I bay the provisions that go into the kitchen. 
I pay the money. I buy tbe beer and the liquor. I pay tbe 
bills. I pay the rent. • • * "When tbe lease was made 
five years ago it was made in Mr. Kohn's name and was no new 
lease made yet. That waa before I married him. I pay the 
rent, now." She is corroborated as to the license by the 
People's witness, and the defendant corroborates her as to the 
ownership and control of the business. Tbe place in question 
is concededly a licensed liquor saloon, and under the require- 
ments of subdivisions 1 and 2 of section 15 of the Liquor Tax 
Law (ConsoL Laws, chap. 34; Laws of 1909, chap. 39) it is 



Beceasarj to have a sworn etatement of the " name and reaidenee 
of erery person interested or to become interested in the 
tra£^ in liqaors for which the statement Ja made," and the 
" name of each applicant, and if there be more than <me and 
the; be partners, also their partnership name, and the age and 
residence of the several persons bo applying, and the fact as to 
his citizenship." It would seem, therefore, that there mnet be 
record evidence back of the certificate showing who is the owner 
and controller of the place, and the certificate would seem to be 
rather a high character of proof of proprietorship. 

We are of the opinion that the evidence does not properly 
connect the defendsnt with the crime chained, and that the 
judgment of conviction should he reversed, and a new trial 

HntsCHBEBo, p. J., JsNKs, Thokas End Rich, JJ., am- 


Judgment of conviction of the Court of Special SearionB 
reversed and new trial ordered. 



Vov. 38, 1910. 


(141 App. DlT. US.) 

Bmmici — Lucent — Pbicib UmKLATD dm. 
On tli« trial of an Indictment chargtnK tbe defendant with iteal- 
Ins a iinrM from a ciotoiner In a department store. It U error 
to admit eTldencfl that on a prior occailon tlie defendant In the 
■ame atore loatled another peraon In the elevator and took her 
purse, that being a diatlnct crime In no manner connected with 
that charged. 

Appeal hy tbe defendant, Q«rtnide Morral, front a judg- 
ment of tbe County Conrt of Eings conntj, rendered againat 
her on tbe 2d day of March, 1909. 

John T. McQovern, for tbe appellant. 

Peter P. Smith [Joftn F. Clarke with him on the brief], for 
the respondeot 

Rich, J. : 

This appeal is from a judgment of tbe Coonty Court of 
Kings coontjr convicting tbe defendant of the crime of grand 
larceny in tbe second d^ree. The evidence apon which the 
conviction was had was circumstantial. Tbe rule is well settled 
that in determining a question of fact from circumstantial evi- 
dence the facts proved must all be consistent with and point to 
tbe gnilt of tbe accused, and mnst be inconsistent with his 
innocence. As was said in Shepherd v. People (19 N. T. 537, 
645) : " In ancb cases tbe circustances themselves must be satis- 
factorily established, and they must be of ancb a character as, 



if trae^ to exclude, to a moral certainty, every otber fajpotheeia 
bat that of the gailt of the accused." Tested hj this rale the 
evidence in the case at bar is insufficient to sustain the convio- 
tion of the defendant. 

Lillian Bosenblatt, the complaining witness, on December 
14, 1909, went to the store of Abraham & Strana at about ■ 
quarter to fonr in the afternoon, to do some shopping, and re- 
mained there until half-past fonr. She carried with her a bag, 
inside of which was a smaller bag containing her money. At 
the soda counter she was crowded and pushed by some woman, 
not identified as the defendant. She did not look to see who 
was doing the pushing, but shortly after foand her bag open 
and the smaller hag with its contents gone. She later identified 
a bag found in the store as the one taken. A detective in the 
store at this time saw the defendant at the soda water counter 
a little after half-past fonr. His attention was directed to her 
because she had two bags which he says he observed carefully 
from a distance of ten feet and discovered that the smaller 
bag had a tear in its npper comer. This bag was carried 
opeaily on her arm hy the defendant and was plainly visible to 
any one looking at her. A police officer, detailed for duty at 
the same store, saw the defendant there in the afternoon of 
December fourteenth at abont five o'clock. He saw her open a 
bag carried by a lady, and upon inqairy of the latter was in- 
formed nothing had been taken from it. He watched defend- 
ant, and a few minutes after saw her open the bag of another 
lady, from which nothing is shown to have been taken, and he 
then arrested her. Defendant was subsequently taken to the 
police headquarters, where she was searched and something 
over fifty-nine dollars was found in her bag. The police officer 
had the defendant constantly in view from the time he arrested 
her nntil they reached police headquartered and saw no second 
bag in her possession at any time, and it is apparent, I think, 
from his evidence^ that she could not have had another bag in 



her possession witbont bis having seen it, and he testifies he 
saw nothing of the kind. A short time after the arrest a store 
detective found on a pile of coshions, near which defendant had 
passed with the police officer, a bag which Mrs, Kosenhlatt 
identifies as belonging to her. The bag had a half-inch tear in 
one comer, b; which Ditman claims to identify it as the same 
bag he saw in the possession of the defendant when he saw her 
at the soda counter some half-boor before her arrest The only 
evidence connecting the defendant in any manner with the 
commission of the crime is that of Bitman, and his identifica- 
tion of the bag is based entirely and solely apon the tear in the 
comer, which Mrs. Rosenblatt says was not in her bag when 
taken fivm her. ITo soch tear was obserred by either Mary 
Clark, who found the bag, the person to whom she delivered 
it, or the police ofBcer to whom it was subsequently delivered. 
It was seen by no person except Ditman. 

While the evidence strongly tends to establish attempted 
criminal acts by defendant while in the store of Abraham & 
Straus, it is insufficient to warrant her conviction of the crime 
charged in the indictment 

There is another reason why this conviction must be reversed. 
Upon the trial the People were permitted to prove, over the de- 
fendant's objection, that on November thirtieth, preceding the 
occurrence for which the defendant was arrested, one Mary 
Pryor was jostled while riding on an elevator in the store of 
Abraham & Straus by the defendant and her purse taken. This 
was evidence of a distinct and separate crime, in no manner 
connected with the crime charged in the indictment and neces- 
sarily prejudicial to the defendant It does not oome within 
any of the exceptions to the well-established rule that "the 
State cannot prove against a defendant any crime not allied 
in the indictment, either as a foundation or a separate punish- 
ment or as aiding the proofs that he is guilty of the crime 
charged." (People v. Spier, 120 App. Div. 786.) 



It follows tliat the jndgment of oonvictum most be reveraed 
and K new trial ordered. 

WooDWABD, J., concDired; Bttsb, Thomab and Caeb, JJ., 
oonctUTed aa the hut ground stated in the opinion. 

Jndgment of conviction of the Connty Court of Kings 
county reversed and new trial ordered. 



Not. 1810. 


<69 App. DiT. 640.) 

iHDtonmn^— FousT, Fibh ahd Oame Law— Code Cbik. Pbo., | 16L 
Under tectlon S4 of the Foreet, VUb and Oune Law. ConrU of 
Special Senlona have Jurisdiction to try peraona charged wltta 
Tfolatlona of that law In any town in the county, and are not 
required to direct the defendant to be brought before a magistrate 
of the town In which the offense was committed, aa provided in 
section IBl of the Code of Criminal Procedure. 

In Buch a case, the ofFender la not entitled to anawer to an in* 
dlctment only, and section ill of the Code of Criminal Procedure 
Is Inapplicable. 

Appeal from a conviction had in a conrt of Special Seseions. 

Van Baaen & Uartin, for appellant 

John K Patterson, Jr., District Attorney, for people. 

Ottawat, J. This is an appeal from a conviction had in 
a Court of Special Sessions held in the town of Westfield, 
Chaataaqua county, N. Y. The conviction was for violation 
of section 135 of the Forest, Fish and Game Law of the State 
of New York. The offense was committed in the town of 
Cfaautauqoa and consisted of discharging dynamite in a stream 
of water within said town. The defendant insists that the 
Court of Special Sessions in which he was convicted had no 
jurisdiction to try the defendant It is claimed in his behalf 
that, pursuant to section 151 of the Code of Criminal Pro- 


the: people v. Mackenzie. 195 

cediiT«, tbe defendant -was triable oniy before a magistrate of 
tbe town in -which the offense was committed. This section 
provides : " The warrant mnat direct that the defendant be 
broDght before the magistrate issuing the warrant, or if the 
offense was committed in another town and is one which a conrt 
of special sessions has jorisdiction to try, or which a magis- 
trate has jurisdiction to hear and determine, he must direct 
that tbe defendant be brought before a magistrate of the town 
in which the offense was committed." This is a general quota- 
tion applicable to cases triable in Courts of Special Sessions. 
If no other or different provisions had been enacted this section 
would be controlling. People v. McLaughlin, 57 App. Div. 
454; McCarg v. Burr, 186 N. T. 467. 

Section 24 of the Forest, Fish and Game Law, however, pro- 
vides " courts of special sessions and police courts of towns and 
villages and the several courts of special sessions and police 
courts in cities shall in the first instance have exclusive juris- 
diction of offenses committed under this chapter and the juris- 
diction of such courts shall extend to all such offenses com- 
mitted in the county where the court sits. A warrant shall be 
returnable before the magistrate issuing the same." It is evi- 
dent from the language of this section that the Legislature in- 
tended a different procedure in this class of cases. It is appar- 
ent that they intended to enlarge the scope of inqniry of the 
courts mentioned and not to confine their investigations to the 
particular locality where the offense occurred. Had the Legis- 
lature intended to limit these investigations to the provisions 
of section 161, it would have been sufficient to have conferred 
exclusive jurisdiction upon Courts of Special Sessions without 
further enactment. Section 24 expressly provides that the 
jtirisdiction of the courts mentioned shall extend to all offenses 
committed within the county where the court sits and directs 
that the warrants shall be made returnable before the magis- 
trate issning the same. The language of this section does sot 



admit of donbt Section 24 of the Forest, Fish and Game 
Law, having been enacted mbaeqnently to section 151 of the 
Code of Criminal Procednre and being inconsistent and re- 
pngnant to the same, mnst be regarded as controlling and as 
an exception to the provisions of section 151. Livingston v. 
Harris, 11 Wend. 329; Hanlcint v. Mayor, 64 N. Y. 18; Peo- 
ple ex rel. Rvss v. City of Brooklyn, 69 id. 605 ; Heckmann v. 
PinJmey, 81 id. 211. 

Under section 24 c^ the Forest, Fish and Game Lav, the 
Court of Special Sessions had jurisdiction to try the defendant 

A farther cont^tion is made by the defatdant that the con< 
viction of the defendant was ill^al becaose the record fails to 
show that the court informed the defendant of her right to be 
tried by a Court of Special Sessions and ask him how he would 
he tried. Section 211 of the Code of Criminal Procednre pro- 
vides : " If the crime with which the defendant is charged 
be one triable^ as provided in subdivision 37 of section 56, I^ 
the conrt of special sessions of the connty in which the same 
was committed, the magistrate, before holding the defendant to 
answer, must inform him of his right to be tried by a court of 
special sessions, and mnst ask him how he will be tried. If 
the defendant shall not require to be tried by a court of special 
sessions, he can only be held to answer to a court having au- 
thority to inquire by the intervention of a grand inry-" The 
defendant insists that subdivision 37 of section 56 is applicable 
to this case. Fzpreasing no opinion npon that proposition, it is 
apparent that defendant's position is not tenable. Section 24 
of the Forest, Fish and Game Lav gave the trial conrt ezdo- 
sive jurisdiction of this offense. It was the duty of the justice 
to try the acctised, notwithstanding any demand to give bail to 
appear before the grand jnry. Austin v. Vrooman, 128 N. Y. 
234; People v. Stark, 17 K. Y. St Kepr. 237; People v. 
Austin, 49 Hon, 396. 

The jndgment of conviction in this case must be affirmed. 



Under the ciimmstances of this case, however, and pnrsoant 
to the authority vested in this court hy section 794 of the Code 
of Criminal Frooednre, the sentence is modified to the time 
already served. 

Judgment accordingly. 



Not. 18 10. 

(69 Misc. 543.) 

Prom the paTment of money under clrcamstancet of great 
secrecT to a repreoentatlTe of a labor union tor the purpose of tn- 
dnclng him to refllgn as an officer of the union and Immediately 
thereafter to enter the employ of the person making the payment 
In hostility to the union to help break a pending strike, the court 
may Infer the vrongtul glrlng of money to such person, while be 
was a representative of the union to induce him to help break up 
the strike. In violation of the prohibition of section 380 of the 
Penal Law. 

Appeal from a coDviction in the City Court of Buffalo. 

Louis E. Desbecker, for appellants. 

Wesley C. Dudley, District Attorney {Clifford McLaugh- 
lin, of counsel), for respondent. 

TatloRj J.: 

Tlie appellants have been convicted in the City Court of 
Bnffalo of having violated section 380 of the Penal Law 
of thia State. That section reads, in part, and in so far 
as the case at bar is concerned, as follows : " A person who 
gives or offers to give any money or other things of valae 
to any duly appointed representative of a labor organization 
with intent to influence him in respect to any of his acts, de- 
cisions, or other duties as such representative * * * is 
guilty of a misdemeanor." 



Testimony vras given on the trial sufficient to warrant s 
conclosion hj the trial jadge that (50 in money, as part of 
an sggr^ate payment of $600, was given by the appellanta to 
one Adamski, an admitted representative of a labor union, 
for the purpose of inducing him to resign as an officer of the 
onion and immediately thereafter to enter the employ of the 
appellants in hostility to the union, to help break a pending 
strike, and that this occurred around midnight, at a rendez- 
vous suggested by appellants, to which they had taken Adamski 
in a closed carriage. Considerable teatim<my was offered, pro 
and con, but this decision must turn on the following question, 
namely: was the above mentioned act one done within the 
contemplation of the statute, with the intent of influencing 
Adamski in respect to any of his acts, decisions or other 
duties as a representative of a labor organization ? 

The appellants claim that Adamski'a resigning as a union 
representative was a purely personal act; that it was not an 
act as a representative of the labor organization ; and, neces- 
sarily, Adamski having been given money so to do, that his 
resigning as such representative and then going to work in 
the interest of the appellants to help break up the strike an 
interest, I most assume, adverse to those of the union, was 
not in the a^;regate a violation of any duty to the union 
under the statute. If the appellants be wrong in this conten- 
tion, then it was the expressed intention of the Legislature, 
when enacting said section 380, to prohibit a third party, 
while a strike of his employees be on, from giving to a repre- 
sentative of a labor nnion, which is back of such strike, money 
to do work for him hostile to the nnion at a time to begin im- 
mediately after the resignation of such union representative 
from his said position. And this even though such third party, 
having interests at stake adverse to the union and in process 
of attempted adjustment, made the resignation of such officer 
a prere<piisite to the going into effect of such new contract of 



employment In otber words, that the Legislature intended to 
prevent these appellants from hiring a nnion representative 
to resign and immediately thereafter to go into their employ in 
hostility to the interests of the nnion. 

The district attorney argues that the method adopted by 
the appellants was either only an ingenioos attempt to get 
around the statnte or the accomplishment of the ends of the 
appellants by means now claimed by them not to be unlaw- 
fu], but really within the fair prohibitory intoidment of the 

This statute, so far as I am able to ascertain, has not hitherto 
received judicial construction. The argument of the appel- 
ants' learned and able counsel is earnest and impressive. How- 
ever, it falls short of convincing me that this judgment should 
be reversed for this reason: 

Supposing that all the other circumstances hereinbefore re- 
cited r^nain as they are, if these appellants stood accused 
merely of having hired Adamski to resign from his repre- 
sentative position in the union, or of having hired him to go 
into their employ even in hostility to the union's interests 
after he had voluntarily resigned, it is probable that no crime 
would have been committed; but the trial judge was justified 
in concluding that the real and wrongful act done hy the ap- 
pellants was giving money to Adamski while he was a repre- 
sentative of the union to induce him to help break up the 
strike ; and that the arrangement about the preliminary resig- 
nation was merely an incident, if not devised l>y the appellants 
to furnish them, at least now erroneously resorted to as fur- 
nishing them, a saf^uard against punishment, because it re- 
moved Adamski from his position as a labor representative 
before he became actively engaged in the empl<^ of the appell- 
ants. I agree with the court below that this whole transaction 
by the defendants cornea fairly within the prohibition of section 



The Btatnte says, "gives mansj with intent to infiaence 
him (the union representBtive) in respect to any of his tcta, 
or other duties as such repreeentatire." Paying money to 
Adamski to " turn over hie people " to the appellants, to " be 
taught what to do," " to do such work as they (appellants) 
aaked him to do with his fellow workmen," wonld sorely eome 
within the prohibiti(m of the statute. Can it be said that 
eonpling thia act with an arrangement that Adamski should 
resign before any more nwney were paid or any of the actual 
work done for appellants removes the transaction from the 
intendment of this law? Would not an affirmative judicial 
answer to this question be rewarding fertility of mind rather 
than fairly construing this statute according to its real pur- 
port i It may not have been Adamski'a duty in goieral to re- 
main an officer of this union, but it strikes me that his re- 
signing for pay at such a time to immediately go to work 
against bis former aaeociatra would have been not only a 
violation of his duty, but an act of gross treachery. 

Counsel for the appellants claims that sections 371, 378, 
S80 and 1822 of the Penal Law are all substantially the same 
in spirit and intendment, interdicting bribery of various 
officials. And he thereupon argues that, since section 1880 
expressly prohibits representatives of railroad corporations 
from offering any position or other consideration to a public 
service commissioner, or his secretary, clerk, etc., this is an 
indication that the Legislatare felt that offering a position to 
any of the other officials named in the various sections just 
enumerated should not be deemed criminal; and counsel fur- 
ther urges, carrying that reasoning through, as he claim^ 
that the L^slature had no intention, when it was passing 
section S80, as it stands, to make the said proved acts of these 
appellants criminal. As to that argument I am impressed 
that our L^slature might well have felt that the act of 
offering any position, of any character and under any circum- 



aUnces, to the officers mentioned in section 1980 (and prob- 
ably comprehended now by section 378) should expreaaly be 
made criminal and did not fall fairly within the scope of 
section 378 or any other existing statute; while at the same 
time it might have been clear to oar legislators that giving 
money to a labor representative, while he was in a union's em- 
ploy, for immediately working for the giver in antagonism 
to the interests of the union, even though such labor repre- 
sentative resigned his position as such as a preliminary was 
BO clearly within the meaning of section 380 as to need no 
other, different or more specific characterization as to its 

Adamski's attitude in this whole affair is not worthy of 
entire commendation. He admits that he lied; that part of 
his story to the appellants "was a bluff; " that he was trying 
to entrap the appellants. But this is not of avail to them. 
Even though Adamski went further than laying a trap and 
actually solicited the appellants to commit crime, it would 
furnish no defense to them, since Adamski was not a prose- 
cuting or other pnblic official of any kind. 

I appreciate the undesirabUity of being compelled to stand 
convicted of having committed a crime, and am firmly con- 
vinced that no man should be put into such a x>osition unless 
it be clear that he has violated a statute, which, fairly and 
strictly construed, for that is the law, characterizes an act or 
omission of the accused person as criminal. Further, with 
a business situation like the one here shown confronting the 
appellants, one can readily understand how, in their zeal to 
terminate a strike damaging to their business interests, they 
may have come to act as they did and without knowledge that 
they were committing a crime. However, moat of us know 
well by heart the old maxim relative to ignorance of the law; 
and it follows that, if these appellants did this act with the 



intent stated in the statute, then ignorance cannot fnmisli 
them excuse. 

And ao, aince I feel that the court below had fair warrant 
for finding that the part taken hy the appellants in this trans- 
action was as hereinbefore indicated, and that such acts bring 
them fairl7 within the prohibitory scope of said section 380, 
I must affirm the judgment of conviction of the City Court 

Judgment affirmed. 



Not. 1910. 


<6» Mlac. 6«8.) 

TMntAxr ElLEcnoii Law — Ikdicticint — ATTonrsr Qikxr&l Hat Act 
Without bedio Debioxated bt Oovisnob. 
Tb« AttomeT-G«nerftl has ample power to act for the people un- 
der the PiimaiT Election Law, to present matters to the grand 
Jury himaelf or by a deputy without any dealKnattos by the Oot- 
emor and to try cases wherein persons are accused o( rlolattons of 
said law; and his presence or that of his deputy before the grand 
Jury win not Invalidate an indictment lor such offense. 

Motion to diemiss an indictment 

Edward E. O'Malley, Attamey-Oeneral (0. M. MoacO' 
witz. Deputy Aitomey-Oeneral, of covmel), for plaintiff. 

Eugene Conran, for defendant 

Dike, J.: 

This is a motion to dismisB the indictment against this 
defendant, on the ground that a person other than those named 
in sections 262, 263 and 264 of the Code of Criminal Pro- 
cedure was permitted to be present during the session of the 
grand jnry, namely, a Special Deputy Attorney-General who 
presented the case to the grand jury. 

An examination of the history of the powers and duties of 
the Attorney-General seems to disclose that the Attorney-Gen- 
eral still retains bis common law powers, with such added 
powers aa have been granted by the State Constitution and 



the statutes ; bat the district attomej, by statute and long con- 
tinned practice, has ancceeded to some of the powers of the 
Attomej-Oeneral, but has not necessarily supplanted him. 

The opinion of Mr. Justice QofF, in the case of People t. 
Kramer, 33 Misc. Kep. 209, gives an interesting history of the 
powers and duties of the Attorney-General nnder the common 
law. It wonld seem, from the anthorities, that, under the 
common law, the Attorney-General possessed the power and 
it was bia daty to appear in any matter, civil or criminal, 
in which the State was interested ; and that he could and did 
thus attend the sittings of any grand juty and present changes 
against any persons accused of the commission of a crime, and 
could later try those cases before the proper tribunal 

At the time of the adoption of the first New York State 
Constitution in 1777, the above powers and many others were 
possessed by the Attomey-OeneraL Chapter 66 of the Laws 
of 1813 provides that the district attorney shall attend the 
sittings of the Courts of Oyer and Terminer and prosecute 
therein, and " it shall not be necessary for the Attorney-Gen- 
eral to attend such courts, except when required so to do 
by the Governor or one of the judges of the Supreme Court." 
Chapter 8, title S, Berised Statutes^ section 1, provides that 
"it shall be the duty of the Attorney-General to prosecute 
and defend all actions in the event of which the people of 
this State shall be interested." It would appear that, be- 
tween 1777 and the adoption of the Constitution in 184R, 
the Attomey-Goieral was relieved but was not in terms de- 
prived of the power to prosecute any action in this State 
wherein the people had an interest. The Constitution of 
1846 set forth as follows: "The powers and duties of the 
Attorney-General shall be such as are now or may be here- 
after prescribed by law." Since 1846 the powers of the 
Attorney-General and the district attorney have been ampli- 
fied by various statutes (Laws of 1892, chap. 683; Laws of 



189^ § 2, sabd. 2; Laws of 1899, chap. 802; Laws of 1900, 
chap. 737, and Laws of 1900, chap. 23, art. 6), from all of 
which it might be argued that the Attome^-Oenentl shall 
perform certain duties at the request of the OoTemor; and, 
therefor^ sQch statutes, b; ezcloBion and implication, pre- 
vent him iTtan performing these duties without designation 
by the Governor. In the case of the People v. Miner, 2 
Lans. 397, it was held that, " As the powers of the Attomey- 
Qeneral were not conferred bj statute, a grant by statute of 
the same or other powers would not operate to deprive him 
of those belonging to the office at common law, unless the 
statute, either expressly or by reasonable intendment, for- 
bade the exercise of powers not thus expressly conferred." 

Mr. Justice Ooff, in the Kramer case, aupra, speaking of 
chapter 66 of the Laws of 1813, as to the powers of the 
Attorney-General, said that this act in no way, " either by 
express terms or reascmable implication, precluded him from 
attending the courts in New York county, if he so wished, 
nor was the relation of the district attorney to him as an 
assistant in any way altered. In practice in some cases, and 
particularly cases of the kitid under discussion, there is co- 
operation of action between the Attorney-General and the 
district attorney. 

In view of the decision of the Kramer case, it would eeem 
clear that the Attomey-Genexal had ample power to act for 
the people under the Primary Electicm Law, to present mat- 
ters to the grand jury himself or by Deputy Attorney-Gen- 
eral without any designation by the Governor, and to try 
cases wherein persons are accTised of violations of the said 

I therefore overrule the demurrer interposed in thia case. 



March, 1910. 


(6» Htoc. 5E0.) 

Fomn — Ftnu. Law, | 8S9— Omission to Eixp Books BT Mnoiuirt, 
The omlnlon br & merchant to make any entry In his hooks ot 
account of a sale of merchandUe, although while In falling cfr- 
cumatancea and shortly before being adjudicated a haokmct In 
Involuntary proceedings and for leaa than the goods cost him, 
does not constitute the crime of forgery In tlie third degree as 
defined by section &1E(B) of tbe farmer Penal Code (Penal Law, 
I S89). 

There Is no law which requires tradesmen and merchants In 
mercantile business to keep books of account or which makes their 
failure to keep them a crime. 

Hbabino upon writ of babeaa corpus. 

Harry E. Lewis, for relator. 

Frederick B, Bailey, Assi^nt Diatrict-Aitomey, oppoaing. 

Maddozj J.: 

While the keeping of accounts in some form, whether in 
books or by aid of memoranda, may now be deemed a nni- 
versal custom in the nsual course of business affairs, I know 
of no law which requires tradesmen and merchants in mercan- 
tile business to keep books of account, nor do I know of any 
provision making tbe failure on the part of such a tradesmen 
or merchant to keep books of account of his business affairs 



a crime, and coansel has not called attention to any sncli 

The relator, cariTing on a mercantile business and keeping 
and directing the keeping of books of account, omitted to 
make any entry whatsoever in said books of a sale made by 
htm in the course of that business; and because of that fail- 
ure he is charged with having committed the crime of forgery 
in the third degree, as defined by secti<m 516, subdivision 3, 
of the former Penal Code, now included in section 889 of the 
Penal Law. 

Concisely stated, it is charged that, while in failing cir- 
cumstances financially and shortly before being adjudicated 
a bankrupt in involuntary proceedings, relator made sale, 
from his stock then on hand, of certain merchandise for less 
than the cost thereof to him and at a greater rate of discotmt 
than had been allowed him; that within a week thereafter 
he received payment therefor by check, which he endorsed 
and delivered to a lady to whom he was then oigaged to be 
married, and that he faUed to make true entry of such sale, 
or of any material particular thereof, in his books of account, 
all with the intent to defraud his creditors. There is no sug- 
gestion of concealment, of larceny, or of misappropriation here. 

That it was a dishonest transaction, one with intent to de- 
fraud his creditors, may well be asserted and conceded, but 
was it a crime under the provisions of the section before re- 
ferred tot Was it a forgery as there defined} It will be 
seen that there was no alteration of any writing, no counter- 
feiting, and no false or incomplete entry made, bat, as said 
before, an omission, willful in my opinion, to make any entry 
of the sale whatever. 

In so far as is applicable here, aubdivieion 3 of section 515 
of the Penal Code mnst be read with especial regard to and 
in connection with the language of subdivision 1, referring 
to the account or book of accounts which may be subject o£ 



snch toTgery, in detemmung vhether they include the ac- 
counts and hooka of the person charged with the act of omis- 
sion; and that section reads as follows: " A person who, with 
intent to defraud * * * -willfully omits to make tme 
entry of any material particular in any account or hook of 
accounts, made, written, or kept by him or nnder his direc- 
tion," helonging to, or apperiaining to the Justness of, a cor- 
poration, asaoeiation, public office or officer, partnerahip, or 
individual, " is guilty of forgery in the third degree." 

The provisions of that section presuppose the keeping of 
an account or books of accounts and that the same are " made, 
written, or kept by or nnder " the direction of the person 
accused of such omission, hut the section casts no burden 
upon any person to keep any account or book of accounts. 

The entry required is that " of any material particular," 
that is, of consequence, of importance; to be a " true entry of 
any material particular" it must include all, it must be a 
complete entry of all the material particulars, and it moat be 
that which is material to some one and for some purpose. 
This section makes the omission, the failure to make such 
entry, if with intent to defraud or to conceal a larceny or 
misappropriation, the crime; and the omission of true entry^ 
as we have seen, must be in the account or book of accounts 
mad^ written, or kept by or under the direction of the per- 
son accused, belonging to, or appertaining to the business of, 
a corporation, association, public office or officer, partnership, 
or individual; and the materiality of the particulars so to 
be entered is to that business and an account therein; also 
to those carrying on such business and for whose benefit and 
in whose interest such account is kept and may be evidence. 

Again, the omission to make tme entry must be in the ac- 
count or book of accounts belonging to, or appertaining to 
the bnsiness of, a corporation, association, public o£Sce or 
officer, partnership, or indiriduaL 



To paraphrase the sectioQ in part, bat without violence to 
its language or expressed intention, may be useful and illus- 
trative in this discussion. It is, if a person, frith intent to 
defraud or to conceal any larceny or misappropriation of 
money or property, willfully omits to make true entry of a 
material particular in the account or book of accounts belong- 
ing to, or appertaining to the business of, an individual, which 
account or book is made, written or kept by him or under his 
direction, he is guilty of forgery. 

Can it be possible that the Legislature intended that the 
person so o£Fending the provisions of that section by failing 
to make true entry could be the individiuU whose account or 
books of accounts are wanting in verity because of euch omis- 
sion? I think not, but such is the contention of the prose- 
cution here. 

Relator was dealing with his own books, his own property, 
and if he had destroyed them could be have been charged 
with forgery under the first subdivision of that section! What 
duty did he owe to those dealing with him, either as debtor 
or creditor, with regard to the keeping of his books of account f 
Indeed, he was under no obligation or duty to them to keep 
accounts or books of accounts. 

The person chargeable with such omission must of neces- 
sity be one burdened with the duty of making, writing or 
keeping such account or book of accounts or under whose 
direction the same shall be done. This, in my opinion, con- 
templates, so far as relates to the business of an individual, 
an employee, a bookkeeper, or a clerk — one who owes a 
positive and legal duty to the employer to keep correct and 
true items of account Who else could it refer to, in event of 
a larceny or misappropriation of money or property and the 
concealment thereof by reason of a total failure to make any 
entry! Such was the case presented in People v. Curtis, 118 
!App. Div. 259, where the accused, a clerk, was charged with 



luTing omitted to make an entry in the booka of Us employer 
of tlie roceipta by him, in the conrse of his employment, of a 
check for fifty dollars for his employer. 

And so in the case of a corporation or association, where 
the act of omission most be that of a person burdened with 
sach a dnty, as for instance an officer or employee charged 
with the keeping of such acconnts or book, or under whose 
direction the same are kept. Likewise, with regard to a part- 
nership, where each partner owes a like duty to the other in 
r^ard to the keeping of trae items of account, provided ac- 
counts or books of accounts are kept by the firm. 

With regard to a public officer or those employed in a pub- 
lic office there can be no doubt as to the duty cast, that to make 
true entries. 

In State v. Young, 46 N. Y. 266; 88 Am. Dec. 212, the 
defendant was indicted for forgery in having made a false 
chai^ in bis book of accounts, and the court held that in that 
alone there was no forgery. 

In Bamum v. State, 15 Ohio, 717; 45 Am. Dec. 601, an 
account entered by a tradesman in his books was settled and 
stated, both debtor and creditor signing their names thereto; 
the tradesman afterward altered the date of such settlement 
hy changing the figure 1 to 4, so that it then read 1844 in- 
stead of 1841, and the court, of course, held that that was 

Counsel have not cited and I have been unable to find any 
case, except that against Curtis, supra, founded upon the 
section under consideration and based upon an omission to 
make true entry as provided in subdivision 3. 

Therefore, it seems to me that it is not within the fair con- 
templation of the section that the person accused and the 
individual whose account or book acconnts are wanting in 
verity because of such omission shall be the one and the same 



It is tumeceesary to consider the other questions presented 
by cotmsel in their briefs, since mj conclusion ia that the 
facts charged against the relator and relied upon hj the prose- 
cation do not constitnte the crime of forgeiy. 

fielator discharged. 



ITov. 18, leio. 


(141 App. DiT. 111.) 

(1.) Tbul— BmsirOB— CMBOBcnuTisa WmnH. 

Upon the trial of one Indicted for robberr the teetlmooT Of the 
complftlnlns wltneea cannot be corroborated by puttlns In evi- 
dence bla Bwom atatement made before the madstrate or bjr 
iMtlnony ai to bli convenatlon with the proMcntinc attomejr 
snbseqnent to tbe alleged robbeiT, wbwe the defendanti do not 
claim that the motlTe for the witneea' teatlmonr bad changed and 
where there had been no chance of circnmotancea which he conU 
not hare foreseen when he made the former ttatenente. The 
admlnlon of anch corroborating erldenoe la rctrenibla error. 

(2.) SAii»--lMruoHiiia Wmnsa on CdLunBU lUxms. 

It le aloo rerenlUe error to admit erldenee to Impeach wltneMM 
reapectlng collateral matten derek^Md on eroMheumlsatlon 
where, atthongh the answer! wne Itruck out, ther mar powlblj 
have injw^ the defendants. 

Affbai. bj the defendant, Alfred Collier, from a judgment 
of the Coonty Court of Kings cotmty, entered in the office of 
the clerk of said connty on the 11th day of May, 1908, con- 
victing the appellant of the crime of robhery in the first de- 
gree, and also from an order denying the said defendant's 
motion for a new trial. 

Thomas EeJhy [James W. Bidgwaj/ with him on the brief], 
for the appellant. 

Peter P. Smith {John F. Clarke. Dittfiet Attorney, with 
him on the brief], for the reaptmdent 



Thohas^ J. : 

Collier and Carlson were indicted for robbery in the first 
degree. The former, convicted, appeals. Collier, Carlson, 
each twenty years of age; Burchard, twenty-tw(^ and O'Neil, 
thirty-one years old, participated in a transaction which was 
either a mere assault upon O'Neil, as the first two testified, 
or assault and robbery, as the last two testified. The evidence 
shows that Collier and Carlson were degenerate^ and that Bur- 
chard was their associate. There is evidence that tends to 
show that O'Neil was their acquaintance and pursoed their 
evil practices. After the theater and a visit to a restaurant, 
O'Neil went to the junction of Flatbush avenue and Eastern 
parkway, where Burchard, an allied stranger, joined him, 
and the two walked up Eastern parkway, meeting and passing 
Collier and Carlson without recognition, and later passing into 
a vacant lot, where one or both of them sat down, and there- 
upon Collier and Carlson came and the three assaulted and 
robbed him. Borchard testified that he and his companions, 
acting upon the assumption that O'Neil was a degenerate, 
arranged that Burchard should lead him into the lots and a 
compromising position, whereupon he should be robbed and be 
unable to complain without ezpoaing his own infamy. Carl- 
son and Collier insist that the affair was but the repolse of 
O'Neil'a vile approaches. But O'Neil did cry out, either from 
the. beating or the robbery, and Burchard and Carlson were 
arrested, and the next morning O'Neil swore to a complaint 
against the two and an " unknown person," whereupon the 
matter was adjourned to July tenth, whea, complainant fail- 
ing to appear, the defandants were discharged. Thereafter the 
indictment was found and trial had. The evidence, properly 
received, was amply sudScient to sustain the conviction, and 
salutary sentence followed. But it is moat unfortunate that 
evidence was received that demands reversal of the judgment. 
The prosecuting officer offered O'Neil's complaint before the 



magiBtrate for the purpose of showing O'Neil's " mmtal atti- 
tude " on June twentj-ninth, the morning following the offense, 
and Smith, assistant district attomej, was allowed to testify 
to a conversation with (VNeil on July twelfth, wherein he 
complained of robbery by Eurchard and Carlson and a third 
man miknown, recited the history of his complaint before the 
magistrate and the reason of bis failure to appear. O'Neil was 
also allowed to give this conversation. The evidence was 
ostensibly to show that O'Neil had, from the event forward, 
been consistent in his accusation, and had not fashioned falsely 
the charge to shield hiTnaal-f from arrest or reproach. Re- 
spondent states the mle to be that "where the witness is 
chafed with giving testimony under the influ^ce of some 
motive prompting him to give a false or colored statement, it 
may be shown that he made similar declarations at a time 
when the imputed motive did not exist So in contradiction 
of evidence tending to show that the account of the transaction 
given 1^ the witness is a fabrication of late date, it may 
be shown that the same account was given by him before its 
ultimate effect and operation arising from a change of circum- 
stances could have been foreseen." The defendant's counsel did 
not urge that O'Neil's motive for his testimony bad changed, 
but that he was from the first moved by the motive of shielding 
his own base practice by accusing bis associates, nor is there 
any change of clrcnmstanoes that he could not have foreseen. 
If this complaining witness may on the trial corroborate him- 
self t^ his sworn statement before the magistrate and his con* 
versation with the prosecuting officer, the same method of 
fortifying testimony is open to all witnesses similarly declar- 
ing themselves preparatory for trial We find nothing excusa- 
tory of this evidence and deprecate its presence in the record, 
as it interrupts the course of justice. We are not unmindful 
of the offer of the prosecution to introduce evidence to impeach 
witnesses respecting collateral matters developed upon oross- 



examination. The conrt excluded or struck oat the answers. 
The qnestioDS are not l^allj defensible, and their asking was 
possibly injurious to the defendants. No person is so morallj 
depraved or bo deserving of punishment as to merit conviction 
hy means of forbidden evidoice, or its attempted introduction. 
This court has the power and intention to correct any hurtful 
results that may appear to have arisen therefrom. For the 
errors in the reception of evidence, as already noticed, the 
judgment should be reversed and a new trial ordered. 

HtBSCHBXBQ, F. J., WooDWABD, Bdbb and HtOH, JJ., oon- 

Judgment and order of the Coonty Court of Kin^ cotmty 
reversed and new trial ordered. 



Hot. 18 1010. 


(141 App. IMv. 114.) 

DieoBDOXT HoDSB— Pnos Jkopasdt as Bax. 

W&ere one charged betore a city maslstrate of New Tork el^ 
wltii keepins a dbwrderl? bcnue had been dtocbarced, the Goort 
of Specl&l ScBslans bu no Jnrlsdlctlon to try blm for the sanM 
oOenae. That the record does not show that objection wu taken 
to the Jorlsdictlon of (be court la immaterlaL 

Appeai. by the defendant, Henrietta Lang, from a judgment 
of the Coart of Special Sessiona of the Second BiTision of the 
city of New York, rendered against the defendant on the 1 2th 
day of April, ld09, convicting her of the crime of keeping a 
disorderly boose, and also from two orders made on the Ist day 
of April, 1910, denying the defendant's separate motions for a 
new trial, and to vacate and set aside the said jadgment of 

Arthur C. Bodwich, for the appellant 

Peier P. Smtih, Assistant District Attorney [John P. 
Clarke, District Attorney, with bim on the brief], for the re- 

Thoicas, J. : 

Defendant, chai^ied with keeping a disorderly honse, and dis- 
charged by order of a city magistrate, was later found guilty 
of the same offense by the Court of Special Sessions, on informa- 
tion filed by the district attorney, to which was attached the 
proceedings before the city magistrate. 



The Conrt of Special Sessions hud not jmisdictioD after the 
discharge by the magistrate. (People v. Dillon, 197 N. Y. 
264.) The juriBdiction was not questioned on the triaL The 
present appeal is from the judgment, whereby it appears that 
the Court of Special Sessions had no jurisdiction, and it is 
immaterial that the record does not show that objection to the 
jurisdiction. (Broohman v. EatniU, 43 N. T. 554, 564; £uley 
V. Phenix Bank of City of New Tork, 88 id. 818, 337.) 

The judgment should be terereed. 

WooDWABD, BuBB, RioB aod Cabb, JJ., oonaoned. 

Judgment of conviction of the Court of Special Sessions and 
orders reversed. 



Deo. 2. leiO. 


(141 App. DiT. IBS.) 

(1.) BfAKSLAUQiiiu Vaer Dhgbiz. 

AppMl from a Jadsment conrlctlnc the defendant ot niAn- 
■lausbter la the Ont depee. Brldenoe examined, and held, tbat 
the Jndgment etaould be affiimed. 

(2.) BA3a—3vwT lS±r RsjzoT Claik ot Self Deixkbe. 

The }ai7 HUT reject a claim of Mlf-defenie on the gronnil of Ita 
Inherent ImprolMbUlty, or becauie the evidence thereof came 
aolelT from a hlghlr Intererted witneei and became of wlUtnl, 
falM itatements 1>7 him. 

(S.) Baio — Trial — Chasok to Just. 

Charge examined, and held, that, while subject to erltlclam In 
minor reepecti, any technical defect! were anbaeaaently cured br 
chargee made at the request of the defendant 

Technical errora are no longer gronnd for rerenal of Judg* 
meat In a criminal action when the court can aee tliat the de- 
fendant took no harm tharebr- 

Where the court In Ita otm language has charged all that the 
defendant Is entitled to, the Judgment ot convlGtlon will not be re- 
versed because the court refused to charge In the exact words of 
a request not read In the presence ot the Jurr- 

(E.) Sun— Ixrms Wutteh Bdoxb Ckiu— Res oxaTAK. 

Where the defendant, being without funds, started out to col- 
lect money and aubaequentlr shot his debtor, letters prerlouslr 
written br him to banks stating that he Inclosed money orders 

Bee notes on Mlf-defeuie. Tola. C-llD, 1M18, M-4tl. 
• Rerersed 201 N. T. 264. See pott. 



In garment of certain notM, Irat not containing anr remittance, 
are admlulUe In evidence as part of the ret getta and also to 
ahov deliberation and premeditation. 

Moreover, wbere the defendant was convicted of manalanghter 
instead of murder, the admlaalon of snch lettera, even If erro- 
neons, was harmlesa. 

Apfeal by the defendant, John C. LnmBden, from a jndg- 
nient of the Court of General Seseions of the Peace in and for 
the county of New York, rendered against the defoidant on 
the 10th day of March, 1909, convicting him of the crime of 
manalanghter in the first de^iree. 

Martin W. Littleton [Owen N. Brovm with him on the 
brief], for the appellant 

Robert C. Taylor of counsel \Charle9 8. "Whiiman, District 
Attorney], for the respondent 

Cl^BEB, J. : 

The appellant was indicted for murder in the first d^ree for 
ahooting one Harry B. Suydam with a pistol on December 19, 
1908. Two shots were fired, causing a perforating wound In 
each breast, from the effect of which Suydam died on the 
twenty-first Appellant was thirty-one years of age. He had 
lived for thirty years in Saleigl^ N. C, and BirminghRm, 
Ala. He had been a player in an orchestra and had served 
in the Spanish war as a private and as a member of the band 
in the First North Carolina Volunteer Infantry. He had in- 
vented a " massage vibrator/' althongh the patents had not 
been issued therefor. 

In April, 1908, he was introduced to Suydam, who was a 
curb broker in the city of New Tork, by one Jacob, with whom 
he was having negotiations in connection with this invention. 
A corporation was formed under the laws of the State of New 
Jersey of which, at first, the appellant was made president 



and Jacob the tTeasorer. Thereafter he resigned and Jacob 
was made president and Suydam treaanrer. Appellant as- 
signed his rights under the patent applied for to the company. 
On or about June 22, 1&08, he delivered to Jacob and Suy- 
dam 750 shares of his stock in the corporation for the purpose 
of being used as collateral for a loan and received therefor 
demand notes signed hj Jacob for $650, the agreement being 
that $1,250 should be borrowed, from which he was to be paid 
$650, the balance to be used in the business of the company. 

The appellant stated that the loan was negotiated, but that 
he was not paid the sum due on said notes. He demanded 
payment several times, threatened to take the matter to the 
district attorney and to the manager of the Curb, and began 
a suit in the Municipal Court. After the service of the sum- 
mons he saw Suydam on or about October 10, 1908, told him 
that he had seen several people in trying to straighten out the 
company and had failed to do so. " Suydam said, ' I see you 
have brought that action,' I said, ' Yes.' He said, ' Well, 
you stand a hell of a chance of getting a judgment.' I said, 
* I will see the district attorney if it becomes necessary and in 
any event I will collect my money.* Suydam said, ' If you 
ever come around here again with those notes yon will get 
yourself in one hell- of a fix.' " 

On Thursday, December seventeenth, he borrowed a re- 
volver from a friend, telling him that he was going down to 
Broad street to meet a man who owed him money and he had 
made several threats. His own revolver was then in pawn, 
and he did not have the two dollars and ei^ty cents necessary 
to redeem it On Friday morning he took out of his trunk a 
box of cartridges which he said he had procured some time 
before in Birmingham, Ala., which fitted the borrowed pistol as 
well as his own; loaded the five chambers of the revolver and 
put seven loose cartridges in his vest pocket. He wrote on said 
day two letters, one to a savings bank in Baleigh : " I enclose 



$50.75 in pajment of not« dne January 15, 1909, with in- 
terest," and the other to a national bank at the same place, 
" enclosed find money order for $400 in payment of note which 
falls dne on January 7, 1909." These letters were found on 
him after the homicide, and be testified that he had no funds 
with which to meet those notes, and that he wrote the letters 
expecting to get the money from Suydam, place it in the letters 
and send it to the hanks. On Saturday morning, December 
nineteenth, he went to Suydam's o£Bce, which was located on 
the first floor of No. 39 Broad street, overlooking the curb 
market on said street, at about ten minutes of ten. 

There were present in the office at the time of Mr. Collins, a 
man sixty-four years of age, whose only connection with Suy- 
dam was that he rented him desk room ; Meyer, an o£Sce boy 
of seventeen years of age, and Downs, Suydam's clerk, a young 
man twenty-five years of age. Suydam sat at his desk at the 
window in the front of the office. As appellant came in Suy- 
dam turned round in his chair and bade horn " Qood morning." 
Appellant answered " Good morning." Suydam asked him if 
he would have a seat He replied: "I don't wish to sit; I 
wish to speak to you a minute outside." 

The two immediately stepped into the hall and had five 
minutes' conversation. For what occurred there we only have 
appellant's testimony. He said he showed Suydam the notes 
and asked him, for the money. " I did not tell him that I had 
written those letters. * * * I did not tell him T had to have 
the money. I made no statement whatever to him as to my 
pecuniary condition or that I needed the money. * * * 
Q. And of course you made no threats against himl A. No, 
sir. I told him that if he did not pay I would go to the dis- 
trict attorney. That was the only threat I madft » • • 
Q. Did you tell him you had a revolver? A. I told him I 
was prepared in case he attempted to do anything. At tlie 
time that I made this statement to him he had said, 'You 



Temembei' wliat I told 70U the last time you were down bere 1 ' 
• And that was, that I would be in a bell of a fix. He did not 
say whether that would be a l^al &z, financial fix, or what kind 
of fix. Q. And all he aaid to you then was to remember what 
be last said to yon ? A. Yes, sir. Q, And you told him that 
yon were prepared t A. Yea, sir. Q. What were you prepared 
for ( I was prepared to protect m^elf in case I was attacked. 
I bad no reason to believe I was going to be attacked, except 
as I have stated to this juiy. I didn't know whether or not 
Suydam was armed. To the best of my knowledge and belief, 
he was not To the best of my knowledge and belief Meyer, 
Cotlins and Downs were not armed. * * * I did not tell 
Suydam in the ball that I had a revolver in my pocket, and 
did not show it to him while there. I followed him back into 
the office. It was outside in the hall that be told me he would 
pay me the money when the market opened. * * * He 
aaid, * Come into the office and wait until the market opens 
and I will get the money for you.' " 

After returning to the office they went over to the window 
and Suydam stood with one foot on a chair and leaning bis 
head on bis hand. Appellant stood with bis hands in bis ovei^ 
coat pockets. There was a little conversation about a machine. 
Suydam said be had sent one to a certain person to be fixed 
and appellant said, " Did you i " About five minutes of ten 
Downs came over to the window to see if the crowd was in the 
street He said it was three minutes to ten. " I am going 
down to get the opening." Suydam said, " Do you know 
about that order?" Downs said; "Which order?" and 
walked towards him. Thereupon Suydam said: "For God's 
sake help me, G^rge, be is going to shoot, get that gun," and 
threw bis arms around appellant's shoulders with hia bands 
at the bac^ Downs jumped to the back of appellant who 
whirled his pistol out of bis overcoat pocket where he had 
been holding it in bis band, as be testified, and before they 



coold get bold of his band lie ttumed it in and fired twice, 
bitting Sujdam under tbe rigbt nipple and under tbe left 
nipple. Thereupon a Bcn£9e took place; thej aU fell to tbe 
floor, Collins jumped in shook the pistol out of appellant's 
band, Downs got it and then threatened to kill him ; Meyer bad 
been ordered to get an officer who ran in; CqIIuib took the 
pistol away from Downs; appellant was arrested, and Suydam 
was taken to tbe hospital in an ambulance. 

After tbe shooting and while still in Suydam's office, the 
appellant denied that the gun was bis. " I can show you I bad 
no revolver when I came here and I can show you that my re- 
volver is in pawn ; " and be showed a pawn ticket for a re- 
revolver when I came here and I can show you that my re- 
volver. He also said that be shot tbe man in self-defense and 
that be took tbe revolver from Suydam's pocket. 

He made a voluntary statement at police headquarters to a 
deputy assistant district attorney. " I have been after Suydam 
for quite a while to get him to take up the notes. I need tbe 
money. I went there this morning and be told me — ' I will 
pay you tbese notes when tbe market opens.' That was a few 
minutes before ten o'clock. He and I were standing by tbe 
window, in his front room there, and without any warning 
he was on me and had me on tbe floor — got me down. There 
were three of tbem. It's bard to describe exactly what hap- 
pened because it was so quick — glass breaking and every- 
thing, all over me — two or three punching me in the face, 
the crowd on top of me. I thought my leg was broken and, in 
this mix up, a gun went ofi. Q. Who fired tbe gunt A. I 
don't know whether I fired it or whether they fired it. Every- 
body bad their band on it. I grabbed him and be grabbed 
me. Q. Wbose gun was it i A. Hia gun. I grabbed tbe gun 
and be grabbed tbe gun and then we bad a tussle and everybody 
had hold of the gun. I knew Suydam was dangerous. I knew 
that he had — be has told me several times — be has kind 



of threatened me when I would go there to collect the notes 
— told me I would get myself in a hell of a fix and all that 
sort of thing. I thought I wonld take my pistol there this 
morning. I have had it in a pawn shop np in Ninth avenue. 
The ticket for it is in my pocketbook there that the officer has, 
I had B box of cartridges that I bought with the pistol several 
years ago in Birmingham. * * * I took enough of these 
cartridges to fill my gun and was going to get my gon when 
I went there in case there was any trouble. I hadn't the 
money to get my gun out It took two dollars and eighty 
cents and I didn't have the money, so consequently I couldn't 
get it. That accounts for my having the cartridges in my 
pocket. The rest of the box of cartridges can be found in my 
trunk. They have been there for several years. They can be 
found in my trunk at my address. Q. Did you have any kind 
of a weapon in yonr possession } A. I had nothing but a little 
com knife, used for trimming corns, that I carry in my 
pocket for sharpening pencils. That's all I had. * • • 
About ten minutes to ten he and I were standing over by the 
window » • • talking and without any warning he hit 
me or shoved me, and I grabbed him and we went on the floor, 
and I grabbed this gun in his hand and the others piled on top 
of me. There were a half dozen hands on the gun but I had 
mine on it — I grabbed it. Q. When did you first catch sight 
of it in his hand t A. He had it in his hand when he grabbed 
me. Q. Did you see the gun before he grabbed you t A. Yes, 
and I grabbed it as soon as I spied it in his hand and he and 
I went down. * * * Q. What part of the gun did yon 
have hold of I A. I couldn't tell you, that's hard to telL Q. 
How was he holding the gun, if you know, when you first got 
sight of it t A. I presume he had it by the handle. He had 
taken it from his pocket — I couldn't tell you what pocket — 
I was looking out of the window when I saw him move and 
grab it. • * • By Captain Carey : Q. Now, you have told 



US about having the pistol in pawn and joa had intended to get 
that pistol and take it with you to this place. — A. (Inturrupt- 
ing.) Yes, I realized the maa was dangerous because he had 
threatened me, and I thought it would be a good idea to haro 
it in my pocket if I should go there, to protect myself in case 
something should happen. I didn't have the money to get 
it and didnH take it Q. But you intended to take it i A. Yes. 
Q, And you say you didn't take any pistol there with youi 
A- No, sir. By Jtr. Symonds : Q. Did you ever get your hand 
on the trigger of this revolver which you say Suydam had! 
A. I couldn't tell whether I had my hand on the tri^er or not. 

* * * Q. Did you have any previous dispute over the 
payment of these notes ? A. No dispute, only I presented them 
to bim and he put me off. By Captain Carey: Q. Isn't it a 
fact that you had that pistol in your hand and one of the men 
in the office took that pistol out of your hand ? A. No, air. 
The pistol, I never did see what became of it They were 
yelling, ' get the pistol t get the pistol ! ' The ofBcer found it 
some place, this man that was in here. * * * Q. Did 
you ever get the pistol in your possession? A. No, sir. Q. 
How many shots were fired t A. Two, I tbiak. Q. Do you 
know whether there was any appreciable interval between the 
two shots? A. Sonnded right together — one right after the 
other. Q. Where were you at the tim^ at the moment — A. 
(Interrupting.) I was on the floor. Q, Do you know where 
Suydam was at the instant the shots were fired ? A. No, sir. 

* * * Q. If you were the custodian of that pistol when you 
went in that office you had better let us know now ? A. I never 
had that pistol in my possession ; I have told you that" 

The appellant took the stand. His testimony was in direct 
contradiction to his statements made immediately after the 
shooting. He testified, as hereinbefore stated, that he had 
horrowed the revolver, loaded it with his own cartridges and 
Iiad it with him in bis overcoat pocket, holding it by the butt 



in his pocket, when he waa in Sujdam's office; that the pietol 
had a safety lever at the back of the butt bo that the trigger 
could not be pulled unless the butt was squeezed. " I took the 
revolver in my overcoat pocket so it would be convenient in 
case I was attacked, so I could pull it quickly.'' That he had 
turned the gun in the direction of Suydam and when he turned 
the gun in his direction and pulled the tri^er he intended to 
shoot. " Q. Was Suydam inflicting any bodily injury on you 
at the time you shot him i A. No, sir, only trying to turn the 
gun on me. * * * Q. Ton know Suydam could not fire 
that gun unless he had hold of it the way I have got it, that 
it is a safety gun ? A. I know that." 

Against the positive and unshaken evidence of the three eye- 
witnesses that all that was done before the shooting was an 
attempt to disarm him, the appellant opposed only his own 
testimony in support of his claim of self-defense from a brutal 
and unprovoked assault. The jury were at liberty to reject 
this defense, not only from its inherent improbability and that 
it came solely from a highly interested witness, but also from 
the willful, false statements, his denial of ownership or posses- 
sion of the pistol and bis attempt to fasten said possession and 
use upon the decedent They were entitled to reject his ao< 
count of the conversation in the hall and could have found that 
be had undoubtedly made some threats because Suydam must 
have learned from him that he had the weapon in his pocket 
for otherwise he would not have called for help to "get that 
gun." In view of the deliberate steps taken by the appellant 
in procuring and loading his weapon, the possession of a 
pocketful of extra cartridges^ his pecuniary necessities, and his 
admission that he carried the pistol in his hand in bis over- 
coat pocket, ready for instant use, we think the jury, in finding 
him guilty of manslaughter, gave him the benefit of every 
reasonable doubt that could be entertained upon the facts 



It IB claimed that a fatsl error was committed in the charge. 
The learned court charged : " The People of the State aaaert 
that he is guilty as charged in the indictment. This he denies, 
and the burden of proof reats npon the People, and it is in- 
cumbent open the prosecution to prove his guilt bejond a 
reasonable doabt of some one of the offenses of which it is 
possible to convict onder this indictment, and if it has failed 
to make euch proof beyond reasonable donbt it becomes your 
duty to return a verdict of not guilty. All the presumptions 
of law independent of evidence are in favor of innocence and 
every person is presumed to be innocent until he is proved 
guilty. This presumption is not a special shield which the 
law puts around a defendant. It is founded upon a wider and 
deeper basis than that. It is the same presumption which at- 
tends you and attends all of us in all of the transactions of life. 
It ia the presumption that no man does wrong. It is the pre- 
sumption that every man performs his duty until the contrary 
appears. It is a presumption that belcmgs to the prisoner. It 
is a presumption which belongs to every witness who comes 
upon the witness stand, equally with the prisoner. It is not 
a presumption that the prisoner is innocent and that every 
one who testifies against him in conspiring to testify against 
him, but the same presumption of innocence which protects 
him protects every person who has any connection with the de- 
cision of the cause." The clause commencing " This pre- 
sumption is not a special shield," etc, is objected to. It waa 
Qnfortunately so loosely worded as to give color to the claim 
that the presumption that a witness speaks the truth is of the 
same weight as the presumption of innocence of the defendant 
The court, however, was quite unnecessarily elaborating the 
subject of presumptions in general. The Code of Criminal 
Procedure (§ 3S9) provides that "A defendant in a criminal 
action is presumed to be innocent, until the contrary be 
proved." That provision is precise, generally understood, 



based on the common law and requires as a rule no explanation. 
An attempt to explain tlie obvious often leads to confusion. 

But the charge immediately proceeded : " The burden of 
proving this case rests upon the People of the State and up to 
the standard employed in the phrase ' proof beyond reasonable 
doubt ; * and I wish to say to you, gentlemen of the jury, in 
relation to this, as I shall say in relation to every part of the 
case, and you will take it with you as part of every instruction 
in relation to any fact, that the People must satisfy you of 
any fact on which it relies beyond a reasonable doubt." 

After defining the different grades of murder and man- 
slaughter and giving general instructions thereon, the court 
proceeded: " You have heard in the consideration of the issues 
in this case many witnesses called both by the counsel for the 
People and the learned counsel for the defense. You are to 
lay the testinLony of those witnesses alongside of your own ob- 
servation and experience and determine the truth with refer- 
ence to them. What is your doty, gentlemen of the jury, with 
reference to the consideration of the testimony of witnesses? 
You are to take their testimony and if possible reconcile their 
conflicting statements, to make due allowance for honest errors 
and to accept the su^estion of perjury reluctantly and from 
necessity. For it is the general observation that all testimony 
is at the risk of imperfect knowledge and imperfect memory. 
Witnesses who appear equally entitled to credit may give 
different accounts of the same transaction, the difference going 
to the substance and effect and sometimes only to immaterial 
details. In such cases you have substantial identity and cir- 
cumstantial variety. Too much importance should not be at* 
trihuted to such differences to discredit a witness. You may 
believe that they intend to tell the truth unless the contrary is 
reasonably clear, and, as far as you can, seek to harmonize 
their testimony and discover for yourselves the substantial 
truth. In weighing the witnesses you must weigh them giving 



regard to tbeir gnde of life and their intelligEiiee, for yon are 
the sole jndges of the wei^ of the testmumj and the credi- 
bility of witnesaee. The statements of the witneaaea are to be 
considered by yon and wei^ted with doe i^ard to their rela- 
tioa to the case as in point vi the bias or prejudice that they 
may have in respect to the partiea or the sabject-matter uoder 
invest lotion ; to contradictions, to previons inoonsifltent state- 
ment^ to their knowledge of the &ctB and their apparent dis- 
position to make just and true disdoenres, and to their known 
or ascertained character. A good deal of credit is due to every 
person who has occasion to speak in a conrt of justice under 
bis oath, and a certain degree of in£rmi^ may and often does 
attach. The memory may be defective, the events and dates 
may be confounded ; witnesses, simple-minded and honest, fre- 
quently contradict tbemselves and each other. • * * You 
should take this testimony and carefully and impartially cim- 
sider the evidence yon have beard, in view of tbe consequences 
to tbe defendant at tbe bar and the People of tbe State of Kew 
York. * » * 1 Jiave purposely refrained from saying 
anything to you upon tbe facts here. Tbey are for you and not 
for me. Whatever impressions have been made upon your 
minds in regard to tbe effect of tbe facts on tbe question in- 
volved belong to the accused and tbe People of tbe State of 
New York, unhampered in tbeir force by any other influencea 
I have been asked by tbe learned counsel for the defendant to 
charge you upon scane propositions of law, as follows: 1. Tbe 
defendant is presumed to be innocent until be is proved guilty. 
This presumption of innocence attends biTti tbrougbont the 
entire trial, and tbe burden throughout the entire trial is upon 
the People to prove beyond a reasonable doubt that the defend- 
ant is guilty. I so charge. 2. This presumption of innocence 
extends to each and every item of proof during tbe course of 
tbe trial. And every reasonable doubt as to each point in tbe 
People's case must be resolved iu favor of the defendant I bo 



charge. * * * 10. Tlie presumption of innocence ia evi- 
dence in behalf of the defendant, which most be overcome l^ 
the Peopl^ and when the evidence is wei^ied thia presump- 
tion maat be cast into the scale on the defendant's side^ and 
unless the evidence in behalf of the People overcomea this pre- 
samption, together with the other evidence in behalf of the 
defendant to such an extent that the People's case is proved 
beyond a reasonable doubt, the defendant must be acquitted. 
I so charge." 

Those three requests, so made and so charged at the close of 
the charge, were the last suggestions to the jury upon the sub- 
ject of the presumption of innocence, and clearly cured any 
technical defect in the statement objected to, made at the be- 
ginning thereof. The verdict for auch an error should not be 
overthrown, especially when it appears to the court that the 
jury by its verdict has given the defendant the benefit of every 
presumption and every reasonable doubt. Technical errors are 
no longer in this State ground for reversal of a criminal judg- 
ment when the court sees that the defendant took no harm 

The court also charged that each juror must be convinced 
beyond s reasonable doubt, and if not, the defendant could not 
be convicted; that they were the exclusive judges of all the 
questions of fact in the case ; that every issue of fact must be 
determined by them alone ; when the defense of self-defense ia 
interposed, the harden of proof is not upon defendant to satisfy 
the jury of the truth of that defense; the burden is upon the 
People throughout, and before the defendant can be convicted, 
the jury must be satisfied, beyond a reasonable doubt upon the 
whole case, that the killing was not done in self-defense, and 
that the defendant is guilty. If in the minds of the jury there 
is reasonable doubt that the killing was done in self-defense, 
the defendant must be acquitted. The jury may disregard any 
testimony which they believe to be not in accordance with the 



facts either by reason of the witness' miHtake or intentional 
misstatement. If the jury beliero that the defendant was 
attacked hj more than one man and that, as a result of this 
attack, he had reasonable ground to believe that be was in 
danger of death or great bodily barm, he was justified in shoot- 
ing either or both of his assailants, and whether or not he shot 
the man who was doing the most of the acts which caused him 
to have this fear is of no consequence. He was not obliged, 
in the beat of this scuffle, to wait until he bad an opportunity 
to shoot the man from whom most was to be feared. Whether 
or not at the time of the shooting facts existed which justified 
tb defendant's belief that he was in danger of great bodily 
harm is inmiaterial, so long as the defendant had reasonable 
grounds to form such belief and did form such beliel Whether 
or not at the time of the shooting facts existed which justified 
the defendant's belief that he was in danger of great bodily 
harm is immaterial, so long as the defendant did actually have 
this belief. 

So that the only defense set up in this case, namely, self- 
defense, was left to the jury in the precise language 8u^;ested 
by defendant's counsel with iteration and particularity. 

Objection is made that one request with regard to the reason- 
able doubt which might be inferred from proof of good char- 
acter was not charged in the exact words requested. The court 
did not deny any of the requests on this subject, but charged in 
reference to proof of good character in its own language, em- 
bodying most of the five requests and clearly covering all that 
the defendant was entitled to. The particular request referred 
to might perhaps have been charged, but it would have added 
nothing to what bad been said. As that request was not read 
in the presence of the jury, the denial thereof could have had 
no influence upon them. The exception is unsubstantiaL 

The reception in evidence of the letters was not reversible 
error. They were part of the res geaUs, they were found on 



the defendant, and they bore upon the question of deliberation 
and premeditation. But as the defendant was not found gniltj 
of murder, they were harmless even if improperly admitted. 

We have carefully examined the whole record and consid- 
ered all of the exceptions appearing therein, and are of the 
opinion that the defendant had a fair trial; that he was un- 
doubtedly guilty of the crime whereof he has been convicted, 
and that no errors were committed sufficient to reqnire us, in 
the interests of justice,. to order a new trial. 

The judgment appealed from should be affirmed. 

Ihqkaham, p. J., McLauokuit, Scott and Dowuhg, JJ., 

Judgment affirmed. 



Dm. 18, leiO. 


(200 N. T. a09.) 


Tbe evidence upoD tbe trial of a detendant, cbarged wltb mnrder 
in tbe flrat degree, reviewed and held, that such evidence 1b 
■ufllctent to warrant tbe (Indlng tliat tbe crime was committed 
wftb deliberation and premeditation, and, fartber, tbat tbe beta 
and circumstances are such as to exclude tjxj hTPOtbeals except 
that of tbe defendant's guilt. 

It was not error to receive, upon sncb trial, tbe evidence of 
tbe men wbo arrested tbe defendant aa to bis statements to tbem 
or In tbelr presence, where none of such statements was made 
as the resDlt of any promlae or tbreata, nor Induced b7 fear, 
and where It appears that whatever the defendant did say was 
voluntary and In the course of conversations. 

(8.) Sakk— VoLUNTABT Statucknts or DBreitDAirr. 

The tact that the prosecntliiK attorney, In cross-examining tbe 
defendant, directed his attention to tbe testimony of certain wit- 
nesses and asked him to state whether It waa true or false, did 
not prejudice tbe defendant 

(4.) Same — Impbopeb Cbosb ExAxntATion bt Distbiut-Attosnet. 

Tbe district attorney also asked tbe defendant whether he meant 
to say tbat a statement of certain wltnessea was a " 11&" This 
exceeded the proper bounds of examination, and was onneceesary 
because affecting the atmosphere of the trial; but where tbe de- 
fendant's answer contained no such cbaracterliatlon, It does not 
constitute legal error. 

(S.) Sauc — Faibhisb ot Tbul. 

The fairness of defendant's trial In a capital csM most be con- 
■Idered br the court 



Apfbal from a judgment of the Supreme Court, rendered 
Septnnber 30, 1909, at a Trial Term for the county of Ulster, 
upon a verdict convicting the defendant of the crime of 
murder in the first degree. 

The facts, so far as material, are stated in the opinion. 

William D, Brinnier for appellant. The evidence of the 
People, upon the trial, vras insufficient to warrant a verdict 
for murder in the first degree. The verdict of the jury was, 
therefore, erroneous and should be set aside and a new trial 
granted. (Penal Code, §§ 181, 183; People v. Place. 157 
N. Y. 584; People v. Mangans, 29 Eun. 259.) The court 
erred in receiving, under defendant's objections and excep- 
tions, the evidence of Cole, Woolheater and Gleason as to 
statements made to them, or in their presence, by the defend- 
ant, while under arrest, charged with the crime of murder, 
and when arraigned before the conmiitting magistrate. {Peo- 
ple V. McMahon, 15 N. T. 384; People v. Mondon, 103 N. T. 
211 ; People v. Kennedy, 159 N. Y. 346 ; 1 Ency. of Evidence, 
357.) The method of examination was unfair and highly 
prejudicial to the defendant. {Mitchell v. Carter, 14 Hun, 

William D. Cunningham, District Attorney, for respond- 
ent. The court did not err in receiving the testimony of 
witnesses Cole, Gleason and Woolheater, as to statements and 
declarations made by the defendant in their presence after 
hia arrest (Code Crim. Pro. § 395; Teachout v. People, 41 
N. Y. 7 ; Kelley v. People, 55 K. T. 565 ; Murphy v. People, 
63 N. Y. 590; Balbo v. People, 80 N. Y. 484; Cox v. People, 
80 N. Y. 500; People v. McOloin, 91 N. Y. 241; People v. 
Mondon, 103 N. Y. 211; People v. Druse, 103 N. Y. 656; 
People V, Chapleau, 121 N. Y. 266; People v. Kennedy, 159 
N. Y. 346; People v. Rogers, 192 N. Y. 331.) 



Gkat, J. : 

The defendant was charged with tbe erime of murder in 
the first d^re^ committed upon Captora Ashe b; striking 
and cntting her with a razor. Her death by violent means 
was not disputed ; but the defendant denied that he was guilty. 
The trial, which followed upon his indictment, resulted in 
a verdict of guilty and the defendant now appeals to this 
court. Captora Ashe, for whose murder the defendant has 
been held responsible, had been known as Katie Ashe, or Ford. 
The evidence is such as to leave it somewhat in doubt whether 
she was fais wife or mistress ; but it is more probable upon hia 
evidence, as well as that of other witnesses, that she stood 
in the latter relation to him. In the evening of March 27th, 
1909, the deceased came to the hospital at Brown's Station, 
in Ulster county, and died within twenty or twenty-five min- 
utes after her admission. Upon her person were found five 
wounds, which had been inflicted by a sharp instrument. One 
wound extended from a point behind the left ear, at the mas- 
toid portion of the skull, downwards and across the throat, for 
over five inches, severing all of the blood vessels and muscles 
down to the bone. Another wound was from above the left 
eye down to the ear ; another was from above the right eye to, 
and through, the right ear; another was upon the right fore- 
arm and another upon and across the left shoulder. The first 
wound was sufficient to cause death. 

The evidence connecting the defendant with the commis- 
sion of the crime charged wa^ wholly, circnmstantial ; but the 
nature of the facts disclosed and the order of succession of 
events, preceding and following the homicide, were such as to 
compel the conclusion that the verdict of the jury was fully 
justified. However reluctant the mind to conclude upon such 
evidence, ordinarily, there was, in this cas^ no such weakness 
in any link of the chain of circumstances, which, by affecting 
its strength, would warrant the entertaining of a reas<mRble 



doabt of the defendant's guilt The defendant and the de- 
ceased were colored persons and came from New York to 
Ulster couDt7; where Ford found employment under the con- 
tractors who were constructing the dams and reservoirs for the 
new aqueduct. On Saturday, March 27, 1909, the defendant 
was diachaiged from hia employment. He and the deceased 
were then residing at Brown's Station, in a house occupied 
by a colored couple named Parish. In the afternoon of that 
day, he quarrelled with the deceased upon her demand for a 
pair of shoes and for some money; denying that he had drawn 
his wages. Refusing to pay Parish what was doe for their 
lodging he was told to leave. When, that evening, about to do 
so, the deceased told him that she did not want to go with him, 
that " she did not belong to him and that she did not want 
to go with him any further." She was heard to say to him 
" Go on, Sam, and leave me alone. I don't want to ga I am 
barefooted and I have no shoes, and I'm hungry and tired of 
following you. I'm not your wife." He said that she must 
go and taking her by the arm, he pulled, or led, her out This 
occurred a few minutes after ei^t o'clock. They proceeded 
a short distance to the neighboring house of another colored 
couple, named Cunningham; where be asked to be lodged for 
the night. When admitted, the deceased, at first, was unwill- 
ing to enter with the defendant; but, finally, consented to do 
BO, saying: " In the morning I will go back to New York and 
that will settle it all." Within a few minutes, the deceased 
came out of the room prepared for them ; saying that she was 
not going to stay and insisting upon leaving the bouse. The 
defendant wished the Cunninghams to keep her in the house ; 
but they refused and the defendant, who had previously locked 
the door, was obliged by them to open it The defendant, first, 
left the boose and, as he did so, the deceased quickly dosed and 
locked the door upon him. She wanted to go out by another, 
the back, door and, possibly had she been permitted to do so^ 



she had escaped the tragedy in which she lost her life. The 
Cunniiighains made her leave by the front door. Within 
fifteen or twenty minutes from the time they left, the Omming- 
hams, as did other witnesses residing in the nei^borhood, . 
heard screams, seemingly, from some point on the road to the 
hospital. The hospital was distant about a quarter of a mile 
and residents of hooses along the road heard, and were awak- 
ened by, these screams. The wife of one of them testified to 
the coming of the deceased to their door and to her calling 
for her and asking that her husband should go with her, that 
she was " hurt ; " but he was ill in bed. The next morning, 
the witness found a " lot of blood " on the stones in front of 
the door. The deceased went on to the hospital. As she en- 
tered, she was bleeding profusely and, falling into a chair, 
became unconscious within five minutes, and, within twenty 
or twenty-five minutes, was dead. Sunday morning a watch- 
man and a police officer followed up the traces of blood from 
the hospital to a point upon the road, where the ground was 
much disturbed by the trampling of feet and was splashed with 
blood. One of them picked up from the muddy ground a thin 
piece of steel, peculiar in shape and with an edge. On Mon- 
day, a suit case of the defendant, which he had with him when 
leaving the Cunninghams' house, was found in some bushes, 
along their fence. After noon of the day after the homicide 
the defendant was arrested, at a point on the Ulster and Dela- 
ware railroad, some thirty, or more, miles from Brown's Sta- 
tion, and was taken to the office of a justice of the peace at 
Uargaretville ; where, his person being searched, there "was 
found, among other things, a blue bandied razor with a piece 
broken from the blade. A smear, or discoloration, upon the 
blade, subsequent chemical tests showed to be from hunum 
blood. Spots upon the hat of the defendant, also, upon sub- 
sequent tests, proved to be human blood. The piece of steel, 
which had been picked up from the road at Brown's Station^ 



fitted with exactness iDto the broken portion of the razor blade. 
At the time of bis arrest, be, at firs^ gave a false name ; de- 
nied that he bad come from Brown's Station, and said that he 
had broken his razor in mending his shoe, and that the blood 
came upon it while he was doing so. The person, who arrested 
him, had done so at the requeat of, and upon the description by, 
the sheriff, given through the telephone. The next morning he 
was taken to Kingston; where the indictment was found 
against him. The record does not disclose that there was any 
prior arraignment of the defendant and nothing aeema to have 
taken place at the office of the justice of the peace beyond the 
search of bis person. After being taken into custody, in con- 
versation with the man, who arrested him, and with the driver 
of the vehicle, in which he was driven to Margaretville, the 
defendant admitted that he had been at Brown's Station. He 
stated to them that he had had trouble with a woman there, who 
was not his wife; that he had walked from Brovni's Station, 
starting about nine o'clock the ni^t before, and that he was 
going to the coal fields of Pennsylvania. It was shown that 
he left Brown's Station with nine dollars of his wages owing 
to him. Witnesses testified to quarrels between the defendant 
and the deceased; to hia maltreatment of her and to threats 
against her life. On the Sunday morning previous to the 
homicid^ the defendant had asked Mrs. Parish to give him 
his razon^ which had been in her possession. There were two 
of them; one being black and the other blue, in color. The 
black one he put into his suit case and the blue one be placed 
in his pocket Mrs. Parish identified the broken razor found 
upon bis person as the one given to him that Sunday morning. 
On Sunday evening, the defendant had left Parish's house with 
the deceased and, in about an hour, returned alone; stating 
that Katie bad run away from him. A few minutes later, she 
came in and said that the defendant had taken her over to a 
part of the works ; that he had his razor in his pocket and that 



be had threatened to kill her. All that he appears to hare said 
to this was, to the effect, that, if he had said so, he did not do 
it; to which she replied, " No^ becaoae I ran awa; and left 
yon — yon didn't get the chance to do it" 

The defendant was ezajuined in his own behalf and denied 
having killed the deceased. He testified that he had no knowl- 
edge of her movementfl after thej went out of Guoningham's 
hoose and that he, first, knew of her death from the ofScer who 
arrested him. Be admitted having left Brown's Station at 
about nine o'clock Saturday evening and that he had walked 
all that night and the next day to the place where he was 
arrested ; except that during the night he had slept for about an 
hour and a half in the depot of a station upon the railroad. He 
said that be had intended to leave the deceased with some one 
and to find work in the Pennsylvania coal fields ; that the blade 
of the razor was broken, when he received it from Mrs. Parish ; 
that he had kept it as it might be nsefol some day or other; 
that he had left his suit case in Cunningham's porch and that 
he could get the money owing him for wages by writing. He 
denied having made threats to the deceased ; though admitting 
that they were not " on the beet of terms." He said the de- 
ceased was in the habit of drinking and that, upon several 
occasioned she had threatened to commit suicide and in such 
a manner as to induce others to believe that he had killed her. 
In substance, his evidence amounted to this: that they had 
lived inharmoniously together and that, in leaving Brown's 
Station that evening, he was but carrying out an intention, 
already formed, to leave her and to find work at some other 
place; that he had no part in her death and knew nothing 
of what happened to her a^r they separated at Cunningham's 
door. His story was unsatisfactory in essential particulars 
and it insufficiently explained his departure from Brown's 
Station, within a few minutes after they had gone out of 
Cn nn i p g h am's house, and bis waUdng throoj^ the ni^ and 


THB PBOIl^ T. FORD. 241 

the next day, leaving behind him the suit caw concealed in the 
bashes and the wages owing bim. It had the appearance of 
a flight prompted by the apprehension of a gnilty mind. It 
is improbable that he should not have known where the deceased 
waa going; or that be should not hare heard the screams, 
which aroused the neighborhood which he was then leaving. 

Upon this somewhat extended review of the evidence, I 
think the conclusion to be clear that the defendant killed the 
deceased by striking her with a razor blade, within a few min- 
utes after they left the house of Cunnin^iam. From the 
nature and location of her wounds, it is altogether improbable 
that they could have been self-inflicted and the theory of sui- 
cide is quite inadmissible. It is inconceivable that a person 
intending suicide would slash himself in such extraordnary 
places, or that he could have inflicted the wounds upon the 
right forearm and back of the left Moulder. While, therefore, 
the evidence was such as to make it incredible that the woman 
had killed herself; nevertheless, that question, as one of fact, 
was submitted by the trial court to the jurors and it was deter- 
mined by them. That any third person could have killed her 
is not a reasonable supposition upon this record. It does not 
appear that any other person had any motive for assaulting 
her. If the jurors believed that the defendant had killed 
the deceased, it was unnecessary that the existence of any mo* 
tive should have been proved. They could readily have 
found a motive in the woman's determination to leave him 
and to return to New York the next day. His determination 
to prevent her, if not jealousy, may have been mere brutish 
unwillingness to have her go. The evidence, sufficiently, war- 
ranted the finding that he killed her deliberately and with 
premeditation. The possession and the use of a razor, and 
the nature of the several wounds upon her body, would justify 
such a conclusion. The case was submitted to the jurors upon 
a charge so fall and so impartial in its tenor that it was not 



excepted to ; nor was there any request for farther ingtmction. 
I do not think that the jary could have rendered any other ver- 
dict than they did, which would have been consistent with the 
evidence. The facts and circnmBtance^ taken together, point 
with irresistible force to the one conclusion of the defendant's 
guilt and exclude any other hypothesis. When the combina- 
tion of the facts is such as to establish the one conclusion, 
as the only reasonably possible one, it should he as fully satis- 
factory to the mind as the direct testimony of eye-witnesses; 
dependent as that most eo often be for its conclosiveness npon 
their character for truthfulness, bias, or accuracy. So far as 
certainty may be predicated of the administration of human 
justice, I think it was attained in the verdict of this }ury. 

The objection to the sufficiency of the evidence to support 
the verdict has been covered by what I have said. It is argaed 
that it was error to receive over the defendant's objections, 
the evidence of the men who arrested him as to his statements 
to them, or in their presence. Although the defendant was in 
custody, none was made as the result of any promises, or 
threats, nor was any induced by fear. There is no evidence 
to show what, if anything took place in the justice's office at 
Hargaretville beyond the search of his person. Whatever the 
defendant did say, that was at all material, appears to have 
been voluntary and in the course of conversations elsewhere. 
There were no confessions and I find no violation of the rules 
regulating the admissibility of a prisoner's statements. The 
only other objection, which I need refer to, is that made by the 
defendant to the form of certain questions asked by the dis- 
trict attorney, when cross-examining the defendant. It is 
argued that they were improper, as requiring him to charac- 
terize the evidence of witnesses for the People and, therefore, 
tending to prejudice him before the jurors. The district at- 
torney, in directing the attention of the defendant to the testi* 
mony of witnesses which conflicted with that which be had 



given, ID eeveral instances, sought to have him state whether 
it waa true or false. I can perceive no ground for holding 
that that constituted legal error. In one instance, however, I 
think that the district attorney exceeded the proper hounds of 
examination in asking the defendant to state whether he meant 
the jury to understand that a statement of certain witnesses 
was a " lie." The answer contained no such characterization 
and, therefore, no prejudice could have accrued to the de- 
fendant's case. While not legal error, to pursue such an in- 
quiry ia as objectionable, as it is unnecessary, because affecting 
the atmosphere of the trial. The fairness of the defendant's 
trial, in a capital case, must he considered by this court 

After a careful consideration of the record, on this appeal, 
I find no ground upon which a reversal of the judgment of 
conviction would be justified and I advise that the judgment 
be affirmed. 

CutLBiT, Ch. J., Haioht, Vawn, WiLL-iED Babtlbtt, Hib- 
cocK and Collin, JJ,, concur. 

Judgment of conviction affirmed. 



Deo. 1910. 


Wblle tba remoral of a boron^ praildent of the city of New 
Tork la an executive act, tbe conrti are not divested of the 
power to protect wltneawe auliptenaed to testify, on an Investigation 
of charges against him, before a commissioner appointed by the 
Govemor, against any Invasion of their constitutional privileges 
affecting their llberUes. 

(2.) Samb— PuBuo Omens Law, | S8— Powras or Oftioebs. 

The provision of the Public Officers Law (| 82), under wblcb 
the commissioner may require the attendance of witnesses, em- 
powers the courts to review either the Jurisdiction ot the com- 
missioner or the exercise of an excess of power; and, while the 
commissioner has no authority to punish a recalcitrant wltneea. 
the court, under aectlona 854-8ES of the Code of Civil Prooedure, 
may oommlt the etCender to ]all unUl he submits to an examina- 

(S.) 8AiiB--CoimxLiFa Wrrmas to Qivi Bvnwitci AoAnfST HmsaLr. 

The Judicial power over the commissioner's Investigation is 

ample to protect proposed witnesses against a violation of their 

constitutional right against being compelled In any criminal case 

to give evidence against themselves. 

(4.) Suck— AminuxoK at ahd Punuass or WmrasBBa at Simul- 


Where two almuttaneons and concurrent investigations are 
being conducted under the authority of the Qovemor, one by a 
grand Jury and the other by the Oovemor'a commlaaloner, cover- 
ing the same general subject-matter, and. In some instances, the 



Bune perioiw are nuterUl wltneaMi opon both InTMUgaUoM, 
and It appean that tlie ptupoae of Bubpoetialng a ftrMon Indicted 
br aaid grand jury la to question him respecting the facti and 
matters charged In nine Indlctmenta found againat him by tald 
grand Jurj, a motion to vacate and set aside the subpcena will 
be granted. The proposed iritness need not flrat be sworn and 
then. In answer to a Question material to the Inqnlrjt claim his 
Gonstltntlonal privilege against self-incrimination. 

UonoiT in abore-coititled proceeding to vacate a snbpceiia 
requiring John M. PbillipB to testify before Samuel H. Ord- 
way, Esq., aa commissioner, appointed by the Governor to in- 
veatigate charges against the borough president of the borough 
of Queens. 

Eugene N. L. Young, for motion. 

Samuel H. Ordway and Charles Pope Caldwell, opposed. 

Kappeb, J. : 

So much of the facts relating to this case as appears to me 
to be necesaaiy to a clear nnderstanding of the point involved 
on this motion ia as follows : 

Charges against Lawrence Gresser, borough president of 
the borough of Queens, were lodged with the Governor who 
thereupon, on September 21, 1910, appointed Samuel H. Ord- 
way, Esq., as commissioner to investigate such charges and 
to report the evidence taken, the findings made^ and the con- 
clusioofl reached by bim to the Governor. The charges were 
contained in two separate sets, one of which was signed by 
Charles Brodek and others, and the other by Charles Pope 
Caldwell and others. Hr. Ordway, as such commissioner, 
commenced his hearings on October 6, 1910. On October 4, 
1910, there was presented to the justice of this court presid- 
ing at the Trial Term a designation by the Governor of the 
Attorney-General to attend the term and to prosecute before 



or Bolnnit to tlie gnnd jury uiy eriniiiULl chaises " against 
anj person or -penooB, growing out of or l«aed apon any viola- 
tion or alleged violation of law, arisiiig throng or from tbe 
tnuuaetioaa in Qaeens conntj of any person otHtnected with 
tbe boroo^ or coim^ of Queens, or the city of New York, 
or with the officers or employeea of any of them." Said jus- 
tice, upon ' aoch presentation, specifically chafed the grand 
jury to inqoire into the matters so designated by the Qovemor. 
On November 22, 191(^ nine indictments were returned by 
said grand jury against John M. PhiUipB, the petitioner 
herein, five of them accruing him jointly with one Patrick E. 
Leahey of tbe crime of grand larceny, two of tbem accusing 
him separately of the crimes of grand larceny and forgery, 
and the remaining two accnsing him jointly with one Joseph 
F. Phillips of the crime of grand larceiy. 

On December 7, 1910, a snbpaaia was served apon the peti- 
tioner requiring him to testify before Mr. Ordwsy, as com- 
missioner, bnt the petitioner, althongh in attendance, refused 
to be sworn. Proceedings to pnnish him for such refusal were 
thereupon instituted by said commissioner before the county 
judge of Qaeens comity, upon an affidavit of the above-named 
Charles Pope Caldwell, one of tbe complainants before the 
Governor against tbe borough president, and who is entitled 
in said affidavit as counsel for the petitioners in tbe proceedings 
before the commissioner. That motion coming on before the 
county judge on December 10, 1910, was adjourned to Decem- 
ber 13, 1910. Immediately following the adjournment tbe pe- 
titioner, as he was leaving the court-house, was served with an- 
other Bubpoma, the subject of this motion, which called upon him 
to appear and attend before said commissioner at two o'clock 
that day (the tenth) to " testify and give evidence " in the pro- 
ceedings before said comnusaioner. This subpcena reintes the 
appointment of Mr. Ordway by the Governor, to take evidence 
of the charges filed by Charles Pope Caldwell and others as 



petitioners, tnd commands the attendance of John M. Phil- 
lips the petitioner herein, to there testify " on the part of the 
petitioner." The subpoena ia signed " Samuel H. Ordway, 
commisaioner " and " Charles Pope Caldwell, atty." 

The petitioner in moving to vacate said snbpoeoa says in 
his petition that "the service of said alleged subpoeiia is an 
attempt to compel this petitioner when acting as a witness in 
said investigation to give evidence which may tend to imperil 
his constitutional privileges as a defendant under criminal 

The question before me is new, so far oa tie brief time at 
my command for research has permitted an examination for 
precedents, yet novels in my opinion is not the sole merit of 
the application. As on the argument, I am still impressed, 
in view of the circumstances existing here, with the gravity and 
possibly appalling consequences to one under indictment if 
the action of the commissioner is to be npheld. 

At the outset of the argument, it was contended on behalf 
of the Governor's commissioner that his investigation was not 
a judicial but an executive act; and, hence, the court was 
powerless to interpose between the subpoena and the proposed 
witness. Undoubtedly the removal of a borough president in 
the city of New York is on executive act. People v. Aheam, 
131 App. Div. 80; affd., 198 N. T. 221. But this does not 
extend to the investigation itself, at least, so far as to strip 
from the courts the power to protect witnesses against an in- 
vasion of their constitutional privileges affecting their liber- 
ties; and this is so whether the investigation be by the Glov- 
emor himself or by his commissioner of investigation. The 
Public Officers Law (§ 34) is the authority under which the 
commissioner acts, and its provision that in the taking of evi- 
dence the commissioner may require vritnesses to attend be- 
fore him undoubtedly empowers the courts to review either 
the jurisdiction of the commissioner or an excess of power. 



Wbile no autlioritj is given to the commiaBioner to pnoish a 
recalcitrant witness, the remedy is foond in sections 854-856 
of the Code of Civil Procedure, the provisions of which, in 
brie^ are, that if a witness refuses to be examined a judge of 
a court of record may commit the offender to jail tmtil he does 
submit to examination. It was ander these provisions that 
both the commissioner and Mr. Caldwell, who appears to be 
acting as prosecutor before the commissioner for those who 
made the charges against the borough president, moved before 
the county judge to punish the petitioner. 

The judicial power over the commissioner's investigation is 
ample to protect proposed witnesses, not alone against an abuse 
of process, but against a violation of their rights under the Con- 
stitution as well, the most important of which is that they shall 
not be compelled in any criminal case to give evidence against 
themselves. This power is not now denied by the commissioner 
who, in an affidavit filed in opposition to this motion, states 
that the petitioner's "constitutional rights and privileges will 
always be respected before me as commissioner." But his con- 
tention is, as he also says in this affidavit, that the petitioner 
must be sworn after which " he could refuse to answer any 
questions on the ground that they would tend to incriminate 
and degrade him." 

The petitioner, on the other hand, avers that the commis- 
sioner's investigation covers the same general subject and under 
the same authority, to-wit, the Governor, as did the inquiry by 
the grand jury which resulted in the finding of the nine in- 
dictments against him, and that the subpoena to attend before 
the commissioner is for the purpose of compelling him to dis- 
close his explanations and defense to the said indictments in 
advance of his trial ; and be contends that, inasmuch as he is 
now under indictment to answer with respect to matters that 
are the subject of the investigation before the commissioner, a 
requirement that he obey the subpoena in question will compel 



bim to be a witness against his will and violate hia right as a 
defendant under indictment to stand mute upon the trial 
thereof, unless he chooses to become a witness on such trial. 

Do the moving papers support the averments and contention 
of the petitioner t 

It is alleged by him, and is not denied by the commissioner, 
that, in the proceedings before the grand jury which resulted 
in the above indictments, the witnesses were summoned on 
subptenas entitled " In the matter of the investigation in the 
Borough of Queens ordered by the Governor of the State of 
New York." 

In the affidavit filed by the commissioner in opposition to 
this motion, he admits " that both the investigation being con- 
ducted by me and the investigation being conducted by the 
grand jury of Queens county cover to some extent the same 
ground, and that in some cases the same persons are material 
witnesses upon both investigations." 

The petitioner further says that the service of the subpoena 
in question is " for the sole purpose of aiding and abetting 
the Attorney-General in charge of Queens county who has 
charge of the indictments against this petitioner, by endeavor- 
ing to compel this petitioner to disclose his explanations and 
defense to the said indictments in advance of the trial of said 
indictments; and the ground of deponent's knowledge in mak- 
ing this statement is the fact that the said Charles Fope Cald- 
well stated to the petitioner's attorney, Eugene N. L. Young, 
and in petitioner's hearing, that it was his purpose to question 
and internets this respondent upon his appearance as a wit- 
ness before the said Samuel H. Ordway, respecting the facts 
and matters charged in indictments numbered as above and 
commonly referred to as the Culvert cases." 

While the commissioner's affidavit denies it to be the pur- 
pose of his subpcena to aid and abet the Attorney-General as 
alleged by the petitioner, it is exceedingly significant to my 



mind that there is no denial whatever, either by the commis- 
sioner or Mr. Caldwell, of the statement alleged by the peti- 
tioner to have been made by Mr. Caldwell to petitioner's attor- 
ney that the purpose of snbpsnaing petitioner before the com- 
miseioQcr waa to question and interrogate him respecting the 
facts and matters charged in the indictments already foond 
against him. 

The petitioner farther says that it is also the pnrpose to 
interrogate him before the commissioner with respect to a con- 
versation claimed to have been participated in by him with 
Patrick E. Leahey, who is indicted jointly with him, " and 
which relates directly to the subject-matter of said indict- 
ments." The petitioner says that his belief aa to this aver- 
ment is a statement contained in the affidavit of Charles Pope 
Caldwell filed with the connty judge of Queens county in the 
punishment proceedings above referred to. The said affidavit 
of Mr. Caldwell before the connty jndge is attached to the 
moving papers and is made a part thereof. And that affidavit 
does assert that one of the matters which " are involved in the 
charges referred to and are necessary and material to the in- 
quiry," is the sul^'ect of a conversation said to have been al- 
ready testified to before the commissioner by said Patrick E. 
Leahey, who is described in Mr. Caldwell's affidavit as " ex- 
superintendent of highways in the borough of Queens" and 
which conversation is alleged by Mr. Caldwell to have taken 
place in the presence of the said John M. Phillips, this peti- 

The only answer made to the claim of the petitioner as to 
the purposes of the inquiry to be made of him by the commis- 
sioner is that contained in the affidavit of the commissioner 
filed on this motion (no other papers being filed in opposition) 
and which nowhere denies a single one of the petitioner's 
claims, with the exception already noted and above quoted, 



namely, that the purpose of sabptEnaing petitioner was not to 
aid the Attomey-GeneraL 

Enough has been shown, I thinly to lead any fair mind to 
the conclnaion that the petitioner's apprehensions are well 
founded, and that be is actually in peril if required to obey the 
snbptEna in question. The moTing papers eetabliah that two 
simultaneous and concurrent investigationa are being con- 
ducted in Queens county under the authority of the Oovernor, 
one by the grand jury and the other by the Qovemor'a oommis- 
aioner, covering, as the commissioner said in his affidavit, " to 
some extent," but to my mind to the folleat extent, the same 
ground ; and that (again quoting the language of the commis- 
sioner in his affidavit) " in some cases the same persona are 
material witnesses upon both investigations." It is the further 
fact that out of the investigations thus far conducted by the 
grand jury this petitioner has had retamed against him nine 
indictmeuts for felony. I am also satisfied from the papers 
before me that the commissioner and Mr. Caldwell, who is act- 
ing in the nature of a prosecutor before the commissioner, seek 
the presence of the petitioner for the purpose of interrogating 
him upon matters for which he has been indicted. In this con- 
nection a reference again to the affidavit of Mr. Caldwell be- 
fore the county judge in the punishment proceedings is per- 
tinent He says that " the said John M. Phillips refused to 
take an oath as a witness, although duly ordered to take said 
oath by the commissioner, stating as his grounds that he did 
not refuse on the ground that it might incriminate or d^^ade 
him, but that it might discriminate against him upon his trial, 
he then being under certain indictments for various crimes." 

What more natural thing than that this petitioner should en- 
deavor to have the world understand that he is not guilty and 
that bis refusal to speak now is a privilege and a right guar* 
anteed to him by the fundamental laws of the land t Unst he 
be Bwom and then, in answer to a question material to the 



inqauy, take refuge behind the claim that his answer maj tend 
to incriminste and degrade him, when in the same breath he 
asserts that he is in no wise incriminated and that he is innocent 
of all criminal charges against him ? 

A witness summoned before the grand jury may well he 
sworn and then take refuge behind a refnaal to answer upon the 
ground that it would tend to incriminate him, end the world is 
none the wiser for the grand jury proceedings are aecreL But 
here, with no secrecy, and with no immunity or indemnity 
whatever, the witness is compelled to brand himself or disclose 
matters wbich may and can be need against him on the trial 
of bis indictments. 

A public investigation which furnishes no immunty or in- 
demnity against self-incriminatory testimony ought to be so 
conducted as not to violate, even indirectly, the constitutional 
guaranty that no person shall be compelled in any criminal 
case to be a witness against himself. In sneh cases nothing 
short of absolate immunity from prosecution can take the place 
of the privilege by which the law affords protection to the wit- 
ness. People ex rel. Taylor v. Forhee. 143 N. T. 219, 229. 

On the ai^ument it was frankly conceded by the commis- 
sioner that whatever the petitioner might testify to could be 
used against him on the trial of his indictments, unless be chose 
to rely on his privilege and refuse to answer on the ground that 
it would incriminate or degrade him. To my mind these alter- 
natives are each of them downright cruelties and, if not posi- 
tively indecent, they savor of an age long past forgotten. This 
petitioner, proclaiming his innocence, must go to the rack; 
and piece by piece this and that fact and circumstance must be 
disclosed, each apparently innocent and harmless in itself, but 
which, when taken together and in conjunction with other mat- 
ters, may lead to a conclusion of guilt where without his own 
disclosures no argument whatever would hold against him. 
Either that, or the people among whom he has lived and borne 



a good character must be pablicly told that so far from being 
innocent of wrong-doing he- is Becreting wrong and crime tmder 
a refusal to answer where a disclosure would incriminate him. 

The effect of such a eitoatioQ upon his neighbors, who would 
ordinarily have testified to his good character, is so manifest as 
not to require elaboration; in fact it appears to me positively 
fatal to a defense of good character which, m criminal cases, 
may of itself create a reasonable doubt. 

Chief Justice Marshall (1 Burr's Trial, 245), in speaking 
of the extent of the immunity which a witness may lawfully 
claim, said : " Many links frequently compose that chain of 
testimony which is necessary to convict an individual of a 
crime It appears to the court to be the true sense of the rule 
that no witness is compelled to furnish any one of them against 
himself. It is certainly not only a possible but a probable case, 
that a witness by disclosing a single fact may complete the 
testimony against himself and to a very effectual purpose ac- 
cuse himself as entirely as he would by stating every circum- 
stance which would be required for his conviction. That fact 
of itself would be unavailing, but all other facts without it 
would be insufficient. While that remains concealed in his own 
bosom he is safe, but draw it from thence and he is exposed to 
a prosecution. The rule that declares that no man is com- 
pelled to accuse himself would most obviously be infringed by 
compelling a witness to disclose a fact of this description." 

In Couv^elman v. Hitchcock, 142 U. S. 547, the claim of 
privilege before the grand jury was involved and, in sustaining 
the privilege contended for in behalf of the witness, the Su- 
preme Court of the United States held that the object of the 
constitutional provision was to insure that a person shall not 
be compelled, when acting as a witness in any investigation, 
to give testimony which may tend to show that he himself has 
committed a crime, and that its meaning was that a witness is 
protected from any compulsory disclosures of the circumstances 



of his offense, or tlte source from which, or the means by which, 
evidence of its commission, or of his connection with it, may 
be obtained, or made effectual for his convietioD, without using 
his answers as direct admissions against him. 

In the Taylor case, supra. Judge O'Brien, apeaking of the 
constitutional and statutory provisions which provide that no 
person " shall be compelled, in any criminal case, to be a wit- 
ness against himself," said (p. 227), that these provisions 
" have long been regarded as safegoards of civil liberty, quite 
as sacred and important as the privileges of the writ of habeas 
corpus or any of the other fundamental guaranties for the pro- 
tection of personal rights." And he adds: "When a proper 
case arises they should be applied in a broad and liberal spirit 
in order to secure to the citizen that immunity from every 
species of self-accusation implied in the brief but comprehen- 
sive language in which they are expressed. The security which 
they afford to all citizens against the zeal of the public prose- 
cutor, or public clamor for the punishment of crime, should 
not be impaired by any narrow or technical views in their ap- 
plication to such a state of facts as appears from the record 
before us. The ri^t of a witness to claim the benefit of these 
provisions has frequently been the subject of adjudication in 
both the Federal and state courts. The principle established 
by these decisions is that no one shall be compelled in any judi- 
cial or other proceeding against himself or upon the trial of 
issues between others, to disclose facts or circumstances that 
can be used against him as admissions tending to prove his 
guilt or connection with any criminal offense of which he may 
then or thereafter be charged, or the sources from which or the 
means by which evidence of its commission or of his connec- 
tion with it may be obtained." 

In the case last cited the relator first answered questions 
before the grand jury which denied, in general terms, author- 
ship of the offense under investigation, in other words, his iu- 



noceDce of any connectioD therewith. Thereupon qnestions 
were put to him with a view of ascertaining who the person or 
persona were that did certain acts which formed the basis of 
the commission of the crime ; and these questions were framed 
in various forms and sometimes repeated, to which the witness 
stated to the grand jury that he declined to give the eridence on 
the ground that the answer might tend to incriminate him. 
He was adjudged guilty of contempt, which adjudication the 
Court of Appeals reversed; and the reasons given hy the 
learned judge who wrote for the Court of Appeals as to why 
the relator should not be compelled to answer these questions 
relating to the other persons and their sets, even after he him- 
self had declared his own innocence, appear to my mind con- 
clusive of the right of the petitioner to prevail before me on 
this motion. 

Judge O'Brien said (pp. 229-231) : " The testimony which 
the relator voluntarily gave before the grand jury, in general 
terms exonerating himself from all connection with the tran- 
saction, seems to have had great weight with the learned trial 
judge It was argued that the relator could not possibly be 
put in peril by his answer to the question, since he had already 
testified that he had no connection with the transaction. But 
this conclusion was not warranted by the facts. The testimony 
of the witness might be ever so strong and clear in favor of his 
innocence, but it did not conclude the public prosecutor, in the 
absence of some constitutional or statutory provision securing 
the relator from prosecution. The general statements of a 
person charged with crime in regard to his innocence avail but 
little against incriminating facts and circumstances. His pro- 
testations of innocence and his broad general denial of any 
knowledge of or connection with the transaction might be over- 
come by facts and circumstances, if the district attorney could 
be permitted to draw them from the witness. Any one who has 
had much experience in the conduct of criminal trials is aware 



of the fact that, freqneDtly, the most dangeroos proof that a 
person charged with crime has to meet are his own statements 
made for the parpose of warding off saspicion or of satisfying 
others with regard to bis innocence. It is not unusual on such 
trials to confront the accused with bis own declarations made 
for the very purpose of exonerating himself from all suspicion, 
but which, when all the evidence is collected, are so far at war 
with all the facts and circumstances as to furnish evidence of 
guilt. The witness, by answering the general questions as to 
his connection with the affair, whether his answers were true or 
false, did not waive his right to remain silent when it was 
sought to draw from him some fact or circumstance which in 
his jadgment might form another link in the chain of facts 
and capable of being used under any circumstances to his detri- 
ment or periL The circumstances relating to the purchase of 
the jugs and the means employed to place them under the 
banquet room were important as furnishing a clue that might 
lead to the identification of the guilty person or persons, and 
the witness was or appeared to be so related to the transaction 
that he might lawfully refuse to furnish the same, notwith- 
standing his general statements to the effect that he had noth- 
ing whatever to do with them. The witness who knows what 
the court does not know, and what he cannot disclose without 
accusing himself, must in some cases judge for himself as to 
the effect of his answer, and if, to bis mind, it may constitute 
a link in the chain of testimony, sufficient to convict him, when 
other facts are shown, or to put him in jeopardy, or subject him 
to the hazard of a criminal charge, indictment or trial, he may 
remain silent. While the guilty may use the privilege as a 
shield it may be the main protection of the innocent, since it is 
quite conceivable that a person may be placed in such circum- 
stances, connected with the commission of a criminal offense, 
that if required to disdose other facts within his knowledge he 
might, though innocent, be looked upon as the guilty party." 



Having reached the conclnsioa that to subject the petitioner 
to the inqaiiy of the Qovemor's commissioner would, ouder 
the circomfitances of this case, imperil bis right to stand mote 
as to alt matters affecting or in anywise connected with the 
subject of the investigation which resulted in hia indictments, 
it would seem to follow that there is nothing that can be aaked 
of the petitioner on the inquiry bj the Governor's commissioner 
after he is sworn, and that at that point the petitioner would 
have the right to remain silent, and that for hia silence he can- 
not be punished. The aabpcena, under those circnmatances, is 
an idle formality, and its issuance oo^t to be nollified. 

In Matter of Attorney-General, 21 Misc. Rep. 101, Mr. 
Justice Chester bad before him an application to vacate an 
order of examination before a referee under the Anti-Monopoly 
Act (Laws of 1S97, chap. 383), and he held that, as the act 
contained no immunity from prosecution of the witness for the 
crime which was sought to be discovered by the examination, 
the order should be vacated, and that such constitutional ob- 
jection may properly be raised by the persons sought to be 
examined upon a motion made by them to vacate an ex parte 
order granted for their examination. He further held that it 
is not necessary that the interposition of the objection should 
be postponed until the examination has been begun and a ques- 
tion has been asked the witness which might tend to criminate 
him. While the affirmance by the Appellate Division of the 
order vacating the ex parte order (22 App. Biv. 285) was 
placed upon groonds different from those assigned by the 
learned jostice at Special Term in support of his order, yet tbe 
Special Term does not appear to have been overruled on the 
foregoing rulings. 

In Matter of Foster, 139 App. Div. 769, a subpcena duces 
tecum issued by the commissioner oi accounts of tbe city of 
New Tork was vacated by the Special Term ; and, in an opin- 
ion of affirmance, Mr. Justice Borr, writing for an unanimous 


258 ^^^^ TOS'T caiMINAL REPORTS. TOT>, XXV. 

eonrt, said (pp. 779, 780): "A more tronUeaome question 
arises as to the re^ntari^ of the practice adopted hy Foster in 
making the motion to set aside the snbpoena. The practice osn- 
ally followed in such cases seems to have been to disobey the 
subpoena and await the institution of proceedings to ponish 
for contempt. Bat in this case the witness sabpcenaed is Holt, 
while the real party to the proceeding is not the witness Holt, 
but Foster, whose ri^ts are being invaded. In view of the 
fact that if a snbposia is ever to beoome effective, it is by virtue 
of the provisions of the Code of Civil Frocednr^ which con- 
templated a judicial proceeding to ponish for contonpt if it 
was disobeyed, we think that a party whose rights are invaded 
by such process may apply to the conrt, whose duty it is to 
enforce it, to set aside snch process if it is invalid." 

The language of the case last cited applies to the case at bar 
in which the subpoena now sought to be set aside could not be- 
come effective except by virtue of the provisions of the Code 
of Civil Procedure providing for a proceeding to punish for 
contempt in case of disobedioice ; and the petitioner, whose 
constitutional rights would appear to me to he clearly invaded 
if required to answer at all to any question that the Govemor^s 
commissioner may put to him material to bis investigation, has 
made a proper application to the court, whoee duty it would 
ordinarily be to enforce the subpona, to set the same aside. 

The commissioner has argned that, unless he is permitted to 
examine the petitioner under oath, the Governor's investiga- 
tion will be halted. If true, that ia less deploraUe than a dis- 
regard of the constitutional safeguards upon which depend the 
liberty of person and the security of personal ri^ta. 

Motion granted. 



Deo. 80, 1810. 


(141 App. DiT. 40S.) 

(L) HtrsDn^-IiroiOTUKiiT m Coiikoit Law Fran. 

An Indictment for mnrd«r In the lint degree In tbe common-taw 
form !■ lafflclent notwlthaUndlng the ttatnte. 

Ai bT Tlitne ot McUon 1044 of the Penal Law the Ulllng ot 
a human being, nnlees excusable or Jiwtlfialile, ie murder In the 
flrat degree when committed by an act Imminently dangeroue to 
others and evincing a depraved mind regardlees of hnman life 
although without a premeditated dealgn to effect the death of any 
Individual, and ai section 1050 of the Penal Law mokes homldde 
manslanghter In the first degree when committed without deelgn 
to effect death br a person engaged In or attempting to commit 
a misdemeanor affecting the person or propertj of another, a 
chauffeur taaj be Indicted and tried for murder In the first de- 
gree and convicted of manslaughter In the first degree where, 
while driving a bl^-powered motor car on a city street at a 
■peed of from thlrtj-dve to forty mllca an hour In violation of 
the Highway Law which made It a misdemeanor to exceed a 
speed of fifteen miles In such locality, he bore down upon a boy 
who was playing with companions In a public street and whom 
ha saw fOr a distance of a full block so that he oonld readily 
have brought his machine to a stop, struck him with great force, 
carried him about IGO feet before he fell to the ground, and ln> 
fllcted Injuriea from which he died. 

Evidence examined, and held, that a Judgment convicting the d» 
fendant of manslaughter In the first degree should be affirmed, 
that It was not against the law and that Justice did not require 
a new trial, 

(S.) Bamk. 

The misdemeanor referred to In section lOSO of the Penal Lav 
need not be one separate and ^art from the act of killing. 



(4.) Same. 

A defendmnt convleted of mftnaUnghter In tbe firit decree cuh 
not oontond npon appeal tlut under the tacte he could onlr ben 
been coDTlcted In the wcond desroe. If he did not more tor the 
direction ot a verdict, or to take any decree ot murder or nwn- 
■UoBhter rrom the conalderatlou of the Jut, and made so re- 
queet to charce In relation thereto. 

HoLauohlin, J., dlawnted, with opinion. 

Appeal by tlie defendant, William Darra^ fnnn a jndg- 
ment of the Court of General Sesaious of the Peace in and for 
the coTinty of I^ew York, rendered on the 4th day of Jon^ 
ld09, convicting the defoidant of the crime of manalangfater 
in the first degree. 

Edward F. Flammer of cotmsel [_Alfred C. Pette with him 
on the brief), for the appellant 

Bohert C. Taylor of counsel iCharies 8. Whitman, Ditiriet 
Attorney], for the respondent 

Clabkb, J.: 

The appellant was a chaoffenr. His employer had pur- 
chased a new aiztj-horse-power car abont the 1st of March, 
1909. This car had made sixty-five miles an boor and the ap- 
pellant had, according to his own testimony, driven it at the 
rate of sixty miles an bonr the day before the occurrence here 
under consideration. 

In the early evening of Saturday, March twenty-seventh, the 
appellant took the car, which at that time was equipped with 
only two racing seats, the body having been taken off and left at 
the garage, and started out to test it, to try out the car on some 
hilt, aa he wanted to nm it np a grade if he coold. He took a 
yoimg man of his acquaintance with, him and at about seven- 
forty-five in the erening started up Homingside drive from 
One Hundred and Tenth street IfOTningside drive going 



north has an np grade to a point between One Hnndred and 
Sixteenth and One Hundred and Seventeenth streets, from 
which point the grade drops toward the north. At One Hnn- 
dred and Sixteenth street some boys were playing a game 
called comer tag. Among them was Ingovaard Trimble, thir- 
teen years of age, five feet four inches in height, well built and 
in good health He was in the roadway near the southeast 
comer of One Hundred and Eighteenth street when he was hit 
by the ear and carried about 150 feet before he fell to the 
ground. He was picked up and taken to a hospital. He was 
found to have received a fracture at the base of the skull, a 
fracture of two ribs, a compound fracture of both bones of the 
leg and many bmisea and other woimds from the effect of which 
he died at nine o'clock the same evening. 

The appellant, although he knew he had hit the boy and 
thought he had killed him, did not stop to investigate, but fled 
at full speed and, by a devious route, returned to bis garage, 
wber^ finding the glass in one lamp smashed and the iron mud- 
guard on the left side of the front wheel bent, he repaired these 
damages, reported to his employer the nest day that the damage 
to the mudguard had been caused by another machine backing 
into it at the garage, fled the city on Monday and was subse- 
quently arrested in Texas and brought back to this State. 

The jury could have found that the speed of the car at the 
time it struck the boy was from thirty-five to forty miles an 
hour. The appellant himself testified that hia speed on the up 
grade which ended between One Hundred and Sixteenth and 
One Hundred and Seventeenth streets was from twenty-four 
to twenty-five miles an hour. He also testified that as he 
crossed over the north crossing of One Hnndred and Seventeenth 
street he saw the boys playing ahead of him at One Hundred 
and Ei^teenth street. Hia claim was that he had slowed 
down to ten or twelve miles at One Hundred and Eighteenth 
street; that if the boy had stood still he would have cleared 



him; that he suddenly ran in front of the car, and altboogh he 
swerved it into the curb and reduced epeed to five miles an 
hour, the boy was hit in the back of the head and the wheel 
passed over him ; that he was frightened by the crowd and put 
on ful] speed to get away ; and that the boy was not carried on 
the machine. From the positive testimony of many eye-wit- 
nesses fixing the place where the boy was struck, and where be 
was found upon the street, the frightful injuries received and 
the damage done the car, the jury evidently rejected, as they 
were entitled to, the appellant's uncorroborated account of the 
tragedy, his companion Brown not having been produced. 

The following indictment was found against him ; " The 
Grand Jury of the County of New York by this indictment ac- 
cuse William Darragh of the crime of marder in the first de- ' 
gree conunitted as follows: The said William Darragh, late of 
the Borough of Manhattan, of the City of New Tork, in the 
County of New York, aforesaid, on the twenty-senventh day of 
March, in the year of Our Lord one thousand, nine hundred 
and nine, at the borough and county aforesaid, with force and 
arms in and upon one Ingovaard Trimble, in the peace of the 
said People, then and there being, wilfully, feloniously and of 
his malice aforethought, did make an aasaolt, and a certain 
vehicle known as an automobile, then and there being operated, 
governed and controlled by him, the said William Darragh, to, 
at, against and upon the said Ingovaard Trimble, then and 
there wilfully, feloniously and of his malice aforethought did 
force and drive, and him, the said Ingovaard Trimble^ with 
the said vehicle so forced and driven as aforesaid, then and there 
wilfully, feloniously and of his malice aforethought, did strike, 
knock down and run over, thereby giving unto him, the said 
Ingovaard Trimble, then and there by the means aforesaid, in 
and upon the head and body of him, the said Ingovaard Trim- 
ble, divers mortal wounds, bruises, contusions and fractures, of 
which said mortal wounds, bruises, contusions and fractures, he, 



said IngoTBard Trimble, then and there died. And so the 
Grand Jnry, aforesaid, do say that the aaid William Darragh, 
hitOj the said Ingovaard Trimble, in manner and form and hj 
the means aforesaid, wilfolly, feloniously and of his malice 
aforethought did kill and murder, aginst the form of the statute 
in such case made and provided, and against the peace of the 
People of the State of New York and their dignity." 

This indictment is in the common-law form. That this is 
sufficient, notwithstanding the statues, waa settled by People v. 
Enoch (13 Wend. 159). In that case the Supreme Court said: 
" The crime of murder mi^t have been committed before the 
Bevised Statutes from implied malice, where the prisoner, 
while engaged in an unlawful act, imder the degree of felony, 
such as a riot or other misdemeanor, killed another against his 
intention. By the third subdivision such unlawful act must 
now be of the degree of felony. This is the only modification 
of the law of murder. * « * The rule that the indictment 
should bring the offense within the words of the statute de- 
claring it, is applicable only in its strict terms to cases where 
the offense is created by statute, or where the punishment has 
been increased, and the pleader seeks to bring the prisoner 
within the enhanced punishment" 

In reviewing and following that case in Fiizgerrold v. Peo- 
ple (37 N. Y, 413) the court said: " The law had then been so 
altered by the Bevised Statutes that a killing which occurred in 
commission of a misdemeanor simply, was not murder. It 
would be manslaughter merely. Malice aforethought em- 
braced a class of offenses which did not then constitute the 
crime of murder. The prisoner then stood indicted for an 
offense which might be murder or might be an inferior offense, 
and yet upon a general verdict of guilty and a judgment in- 
flicting the pnishment of death, the Court of Errors sustained 
the judgment. The Chancellor* gave the answer which I have 



already cited, ' that it is the dtitj of the court to see that a 
proper direction be given to the jury in point of law upon the 
evidence, and if either court or jury err, the appropriate 
remedy mast be sought.' This is equally true in the present 
case. * * * It has always been held to be the law that 
upon an indictment charging the offense of murder and noth- 
ing else, the prisoner might be convicted of manslaughter. The 
same allegations in the indictment would maintain a conviction 
for murder, or would justify a vordict of manslaughter merely. 
The result depends upon the proof, the direction of the judge, 
and the opinion of the jury. As these elements require a con- 
viction of the greater or minor offense, sudi will be the result." 
(See People v. OihUn, 115 N. Y. 196.) 

The present statute is section 1044 of the Penal Law, which 
provides: " The killing of a human being, unless it is excus- 
able or justifiable, is murder in the first degree, when com- 
mitted: * * * 2. By an act imminently dangerous to 
others, and evincing a depraved mind, regardless of human life, 
although without a premeditated design to effect the death of 
any individual." And it was this portion of the statute to which 
the attention of the jury was directed by the charge of the 
court in submitting to them the question whether the appellant 
was guilty of murder in the first degree. 

The proper interpretation of this section was laid down in 
Dairy v. People (10 N. Y. 120). Sbxdbn, J., pointed out 
that " the substitution of new and original phraseology in our 
statute defining the crime of murder (2 R. S. 851, § 5) * was 
the result of an effort to clear the subject of the obscurity which 
grew ont of the inaccurate use of some of the terms of the com- 
mon law," with especial reference to express and implied mal- 
ice, but that the statute was, nevertheless^ based upon the com- 
mon law, and cites from 1 East's Pleas of the Crown (223, 
§ 10) the 3d subdivision of the general definition of homicide: 
Bee 9 R. a 6S7, § 0.— [Rep, 



" 3. From a general malice, or depraved inclination to mis- 
chief, fall where it may." " The word ' general ' here nsed, 
and the last words of the sentence, leave no donbt as to the 
nature of the cases contemplated by this anbdiviaion. They 
were cases of depraved and reckless conduct, aimed at no one 
in particnlar, bnt endangering indiscriminately the lives of 
many, and resulting in the death of one or more. If this be not 
clear upon the words themselves, the comments of Mr. East 
upon this subdiviBion would seem to put the matter at rest. 
(1 East's P. C. 231, § 18.) In illustrating this subdiviBion, 
he says : * The act must be unlawful, attended with probable 
serious danger, and must be done with a mischievous intent to 
hurt people, in order to make the killing amount to murder in 
these cases ; ' and the instances he gives are as follows : ' If a 
person breaking in an unruly horse, wilfully ride among a 
crowd of persons, the probable danger being great and apparent, 
and death ensue from the viciousness of the animal, it is mur- 
der.' Again, ' so if a man, knowing that people are passing 
along the street, throw a stone likely to create danger, or shoot 
over the house or wall, with intent to do hurt to people, and one 
is thereby slain, it is murder.' * * * It is clear, I think, 
from what has been already said, that the subdivision in ques- 
tion does embrace those cases where an intent to take life exists, 
which ia not directed to any particular individual, but is gen- 
eral and indiscriminate. The language of the subdivision, how- 
ever, at the same time shows that it was not intended to be 
confined to those cases, but was designed to include another 
class, closely akin to and almost identical with those, in which 
death is produced by acts putting the lives of many in jeopardy, 
under circomstances evincing great depravity and utter reck- 
lessness in regard to human life. For instance, a man may 
fire into a crowd with the view of destroying life, and he may 
do so for the mere purpose of producing alarm, although at 
the imminent hazard, as he knows, of killing some one. Again, 



he may open tlie drawbridge of a railroad, with intent to de- 
Btroy the livea of the passengers, or he may do it for the sole 
purpose of effecting the destruction of the property of the 
railroad company. The aobdivision in question was intended 
to provide for all these and similar cases indiscriminately, put- 
ting them upon the same footing, without regard to the particu- 
lar intent. The phrases ' imminently dangerous to others ' 
and ' depraved mind, regardless of human life,' have an apt 
and intelligible meaning when used in regard to such cases." 

The facts alleged in the indictment and proven in the case at 
bar, bring it within the class of cases pointed out, not only by 
Seij)eit, J., but thoee cited from East, as sustaining the charge 
of murder under the subdivision of the section quoted, and par- 
ticularly the illustration of the attempt to break a vicious horse 
in a crowded street. For purposes of pleasure and business, 
the motor car has to a very considerable extent supplanted the 
horse. The law in its growth adapts settled principles to chang- 
ing circumstances. It is well settled that the same kind of 
acts, producing identical mischiefs, although perpetrated with 
different and more modem instruments, come within the an- 
cient principles. Therefore, the indictment was properly laid 
upon the charge of murder in the first degree. 

Section 30 of the Penal Law provides that " whenever a 
crime is distinguished into degrees, the jury, if they convict 
the prisoner, must find the degree of the crime of which he is 
guilty." The learned court, in its charge, defined the different 
degrees of murder and of manslaughter fuUy, and submitted 
the question of the degree of guilt to the jury in case they found 
him guilty at all. The jury returned a verdict of manslaughter 
in the first degree and the appellant now asks that the judg- 
ment be reversed, because if guilty at all he was only guilty of 
manslaughter in the second degree ; that imder the facts proven 
he could not properly be convicted of manslaughter in the first 
degree. There is not an exception in the case which brings up 



this question. He did not move for the direction of a verdict 
or to take any degree of mnrder or manslftnghter from the con- 
sideration of the jury. Although he made fortj-nine requests 
to cbai^, not one of them touched this qnestion, and although 
the court clearly left it to the jury to determine as to the de- 
gree, no era%ption or request in r^ard thereto or to any portion 
of the charge was made. 

In People v. Hiuon (187 N. T. 97) defendant was indicted 
for manslaughter in the first degree, which is taking human 
life without design to effect death, but was convicted of assault 
in the first degree, which is an assault made with intent to 
effect death, or to commit a felony upon person or property. 
Vann, J., said : " There was no evidence to warrant a finding 
that the assault was made with intent to commit a felony upon 
person or property. The Appellate Division* reversed the 
judgment of the County Court, hut by its amended order the 
reversal is certified to have been made ' upon questions of 
law only, the facts having been examined and no error found 
therein.' The opinion indicates that it reversed because man- 
slaughter negatives the idea of an intent to kUl, while it is an 
essential element in the crime of assault in the first degree. 
That was a question of law, hut it was not raised by any ex- 
ception. No court can create an error of law by certifying 
that there is one, and a question of law in a criminal case prose- 
cuted by indictment can be raised only by an exception. The 
Appellate Division could have reversed because the verdict 
was against the weight of evidence, but they did not and we 
cannot. There is no exception in the record to justify the re- 
versal. * • » There was no motion made at the close of 
the evidence that the court should advise an acquittal, or that 
the defendant should be discharged. There was no exception 
to the charge that the jury could convict of assault in the 
first degree and no request made to charge upon that subject. 

* See 114 App. Dlv. 698.— [Bbf. 



When the caae was aubmitted to the jury, therefore^ the de- 
fendant was in the attitade of consenting that they might pass 
npou the evidence end also of acquiescing in the charge that 
they conld convict of assault in the first degree, notwithstand- 
ing the indictment was for manslaughter in the first degree." 

There was no motion in the case at bar at the close of the 
People's case or at the close of the whole case to take the case 
from the jury or to discharge the prisoner, and there are no 
exceptions to the charge. 

Judge Vann proceeded : " There was a motion for a new 
trial but the order denying it brings up nothing for us to re- 
view. There was a motion for an arrest of judgment, but that 
brought up only the jurisdiction of the court over the subject 
of the indictment, which is not disputed, and the question 
whether the facts stated constitute a crime, meaning, of course, 
the facta stated in the indictment. {People v. Meakim, 183 
N. Y. 214, 219; Code Or. Pro. §§ 323, 331, 467.) It is not 
claimed that the facts stated in the indictment do not constitute 
a crime, although it is strenuously insisted, as the Appellate 
Division held, that they do not constitute the crime for which 
the defendant was convicted. However, when the court charged 
the jury that they could convict him of an assault in the first 
degree, notwithstanding the indictment was for manslaughter 
in the first degree, the defendant made no objection and took 
no exception. He acquiesced in that instruction and was ap- 
parently satisfied with it. * * * We have no power to 
pass upon the question of law which led the Appellate Division 
to reverse, because it was not raised by an exception. That 
learned court was in the same situation with reference to that 
question, although it had ample power with reference to other 
questions not open to us. We are thus compelled to reverse 
their determination because they had no power to make it." 
(Cited in People v. Washer. 196 N. Y. 104; People t. Thomp- 



mm, 108 id 396; People v. Blahe, 121 App. Dir. 613; affd., 
193 N. T. 616.) 

This conrt has the ri^t to review the evidence and this we 
hare done and find the verdict of guilty aostained therehy, and 
we do not find that it is against the law or that justice requires 
a new triaL Section 1050 of the Fenal Law provides that 
" Sach homicide [that is unless it is excusable or justifiable] 
is manalaughter in the first d^ree when committed without a 
design to effect death: 1. By a person engaged in committing 
or attempting to commit a misdemeanor affecting the person 
or property either of the person killed or of another." 

At the time of the tranaactiona in question the Highway Law 
(Consol. Law^ chap. 26 ; Laws of 1909, chap. 80) was in forca 
By section 291 thereof it was provided that no person should 
operate a motor vehicle on any public highway where the terri- 
tory contiguous thereto is dosdy built up, at a greater rate 
than one mile in six minutee; or elsewhere in a city or village 
at a greater rate than one mile in four minutes ; and by section 
807 it was provided that " The violation of any of the pro- 
visions of section * * * two hundred and ninety-one 
• * • of this article * * • ahall be deemed a mis- 
demeanor, punishable by a fine not exceeding one hundred 
dollars for the first offense, and punishable by a fine of not 
less than fifty dollars nor more than one hundred dollars, or 
imprisonment not exceeding thirty day^ or both, for a second 
offense, and punishable by a fine of not less than one hundred 
dollars nor more than two hundred and fifty dollars and im- 
prisonment not exceeding thirty days for a third or subsequent 
offense." So that at the utmost the tawfid speed upon the 
Homingside drive was fifteen miles an hour, a violation of the 
restriction was declared a misdemeanor, and the appellant tes- 
tified that he knew that was the speed limit, and also that he 
had been twice convicted and fined for speeding. 

The Btatntee also provide : Section 48 of the Penal Law : " A 



person who wilfully and wrongfully commits any act which 
aeriously injurea the person or property of another^ or which 
seriously disturbs or endangers the public pea(» or health, or 
which openly outragea public decency, for which no other 
punishment is expressly prescribed by this chapter, is guilty 
of a misdemeanor." Section 1530 of the Penal Law: "A 
' public nuisance ' is a crime against the order end economy 
of the State, and consists in unlawfully doing an act, or innit- 
ting to perform a duty, which act or omission: 1. Annoys, 
injures or endangers the comfort, repose, health or safety of 
any considerable number of persons; * * * or, 3. Un- 
lawfully interferes with, obstrocts, or tends to obstruct, or ren- 
ders dangerous for passage • * * a public park, square, 
street or highway; or, 4. In any way renders a considerable 
number of persons insecure in life, or the use of property." 
In Johnson v. City of New York (109 App. Div. 825) Hibbch- 
BEBo, P. J., in a case where the city authorities had allowed 
automobile racing upon a highway on Staten Island, after cit- 
ing the statutes and the common law in regard to nuisances, 
said : " In the light of these definitions it seems obvious that 
the use of a public highway in violation of lew end in a manner 
intrinsically dangerous to the community must be a nuisance 
as matter of law." And althou^ the judgment was reversed 
(186 N. Y. 139) because the jury had not been permitted to 
pass on the main question as a matter of fact, Cui.i.Brr. Ch. J., 
said : " Therefore, the race or speed contest held by the defend- 
ants was an unlawful use and obstruction of the highway and 
per se a nuisance. (Penal Code, sec 385, sub. 3.) " In the 
case at bar the court left to the jury the question of whether 
apellent was committing a misdemeanor or a public nuisance 
as a matter of fact. 

So that if the question were properly before ua it would be 
clear, we think, that the conviction under section 1050 of the 
Penal Law was justified because the jury by their verdict have 



found that the appellant was a person engaged in committing 
a misdemeanor affecting the persoa or property of the person 
killed or of another. If the evidence is to be credited, as it 
has been, this defendant, at what might well be characterized 
as a fnrions rate of speed, cbai^d down upon a group of boys, 
whom he clearly saw, at a distance placed by himself, of a full 
block, within which he could readily have brought the machine 
to a entire stop. He hit and killed one and narrowly escaped 
another. To bold that the misdemeanor which he was thus 
conmiitting did not affect the person or property either of the 
person killed or of another would be a refinement of reasoning 
which we are not prepared to adopt The claim that the mis- 
demeanor referred to must be separate and apart from the act 
of killing is not sustained by the later cases. (People v. Mc- 
Eeon. 81 Hun, 449 ; Buel v. People, 78 N. T. 500; People v. 
Stacy, 119 App. Div. 748; affd^ 192 N. T. 577.) 
The judgment appealed from should be affirmed. 

Ikcbahah, p. J., Lauohun and Soott, J J., concurred; 
HcLauohlin, J., dissented. 

!M!cLauohlin, J. (dissenting) : 

The defendant was indicted for murder in the first degrea 
The indictment was in the common-law form, and under It, 
undoubtedly, the proaecntion could prove facts to bring the 
case within any of the provisions defining murder in the first 
d^ree. (People v. Svllivan, 178 N. T. 122; People v. fft&- 
lin, 115 id. 196.) He was convicted of manalaughter in the 
first degre^ and it is claimed he was guilty of that crime be- 
cause, at the time of the homicide, the defendant was engaged 
in committing a misdemeanor affecting the person or property 
of the person killed. The statute provides that homicide is 
manslau^ter in the first degree when committed without a 
design to effect death by a person engaged in committing or 



attempting to commit a miBdaneanor affecting the person or 
property either of the person killed or of another. (Penal 
Law, § 1050, subd. 1.) Here, the persoo killed was playing 
in a public street The defendant was committing a misde- 
meanor because he was driving an automobile at an unlawful 
rate of speed, but that misdemeanor did not, within the mean- 
ing of the statute as I read it, affect " the person or property " 
either of the person killed or of another. The misdemeanor 
here referred to has reference to some particular person or 
property as distinguished from people or property in general. 
Entertaining this view, I do not think the facts proved made 
the defendant guilty of manslaughter in the first d^ree. The 
jury might well have found him guilty of manslaughter in the 
second degree, because the evidence showed he was not only 
driving the machine at an unlawful rate of speed, but that he 
was guilty of culpable negligence in driving it as fast as he was 
when the boy was struck. (See Penal Law, % 1052.) 

But it is urged that the question of whether the evidence 
justified a verdict of manslaughter in the first degree cannot 
be considered upon this appeal, because there is no exception 
in the record raising it. If my conclusion be correct that the 
evidence does not establish that the defendant was guilty of 
manslaughter in the first degree, then the verdict of the jury 
is without evidence to sustain it, and it does not need an ex- 
ception to enable this court to consider the question. Section 
527 of the Code of Criminal Procedure expressly provides that 
where an appeal is taken to the Appellate Division it " may 
order a new trial, if it be satisfied that the verdict against 
the prisoner was against the weight of evidence, or against law, 
or that justice requires a new trial, whether any exception shall 
have been taken or not in the court below." 

For these reasons I think the judgment of conviction ap- 
pealed from should be reversed and a new trial ordered. 

Judgment aflSrmed. 



Ape. 1010. 


(70 HUa 188.) 

Gum JuiT— FECfiEircx of ATTOKmr-Oxnui. 

Although th« Oovernor properly reqalred the Attornej-Oenenl 
to maaacs and condnct In penon or by one of his deputlM anr 
proceedings before the grand Jarj of Queeni conntr relating to 
anr criminal charge arising, growing out of or baaed upon anr 
pnrehaae of land bj the city for Klaaena park, vhere the grand 
Jury, under the management and conduct of the Deputy Attomer- 
General, found an Indictment algned by the Attomey-Oeneral 
under section 810 of the Penal Iaw and the Indictment contains 
no allegation In words or by fair legal Inference that the defend- 
ant was In any way connected with the purchase of land tor KIs- 
■ena park or had undertaken to do any act which could be con- 
atmed as an act arising, growing out of or based upon the pur* 
chase of the land, such an Indictment is without the scope of the 
Investlt^tlon and should be set aside. 

Motion to set aside aa iDdictment 

Exra P. Prentice, Jacob Frank and Henry B. Eeteham, 
Deputy Attomeyt-Oeneral and Frederick 0. De Witt, district 
attorney of county of Queent, for People. 

Thomas F. Magner, John F. Carew and WUliam Basquin, 
Jr., for defendant. 

Clakk, J. : 

Acting nnder the authority conferred upon him hy the 
Lavs of 18S2, chapter 683, section 52, as amended by the 



Laws <^ 1896, diapter 821, section 2, now appearing as sec- 
tion 62, snbdiviaion 2, of the Execative Law, the Gtorernor 
of the State of New York required the Attorney-General to 
manage and conduct, in person or b; one of his deputies, any 
criminal actions or proceedings which might be taken before 
the grand jury of Queens county relating to any criminal 
chai^ arising, growing ont of or based upon any parchase of 
land by the city for £isaena park. By the law under which 
such requirement was issued by the Governor the duties and 
powers of the Attorney-General are limited to such actions or 
proceedings " as shall be specified in such requirement" In 
order to fulfill the requirement of the Governor the Attorney- 
General appointed one Nathan Vidaver as Deputy Attorney- 
General to manage and conduct the matters above specified. 
Both the requirement of the Governor and the appointment by 
the Attomey-Goieral ar^ with respect to the purposes of the 
inquiry and to the powers conferred, expressed in the same 

Nathan Vidaver appeared before the grand jury of Queens 
county, under such appointment, and there duly conducted an 
examination ; in the course of which the defendant, being celled 
as a witness, offered in evidence a document which is charged 
in the indictment as having been to the knowledge of the de- 
fendant fraudulently altered. After the giving of such testi- 
mony the grand jury, under the management and conduct of 
the Deputy Attorney-General, found this indictment, signed 
by the Attorney-General, against the defendant, under section 
810 of the Penal Law. There is no question that the Governor 
had the right to require the investigation in question, subject 
to the statutory limitation of the investigation by the Attomey- 
Gteneral to such matters as should be specified in such require- 
ment, nor that the Attorney-General duly deputized Nathan 
Vidaver, within such limitations, to manage and conduct such 



The question, therefore, arises whether the iovestigation 
and indictment were respectirelj made and found within the 
scope of the requirement of the Qovemor. There is no allega- 
tion in the indictment, in words or bj fair legal inference, 
that the defendant was in any way connected with the pui^ 
chaee of land for Kissena parl^ or that, before the consumma- 
tion of the said purchase, he had directly or indirectly under- 
taken to do any act whieh could be construed as an act arising, 
growing out of or based upon the purchase of the land. In 
the absence of any such allegation the offer for which the de- 
fendant was indicted stands disconnected from any other acta 
arising out of the purchase whieh might form the basis of 
a criminal charge. The act of the defendant was at most 
collateral. It was without the scope of the investigation, not 
being within its expressed or legally inferable purposes. 

Had there appeared in the indictment any intimation of a 
preconceived purpose on the part of the defendant, before the 
consummation of the pnrchaae, to do any of the acts, with 
the commission of which he now stands charged, a different 
conclusion might have been reached. 

The indictment is set aside. 



Deo. 1010. 


It does not follow that, becauM somo Btatnte haa been violated 
In the course of proceedings against a person who has been In- 
dicted tor Clime or because some right gaaranteed to him bj the 
constitution has been Invaded, the indictment should be dismissed; 
but It must appear that the wrong done to blm was in some war 
connected with the finding of the Indictment 

Although a person Is unlawfully arrested without a warrant 
Upon an unfounded charge that was abandoned when the defend- 
ant was arraigned before the magistrate; and although he was 
then charged with other crimes and, while hearings upon the 
latter charges were pending, was required to attend and prodnee 
his books of account before the commissioners of account in ft 
pending Inveetlgatton InTolvlng the matters upon which one of the 
charges against him was predicated; and although when he ap- 
peared before the commissioners with his books he was swom, 
against his objection, and interrogated until be declined to an- 
swer further on the ground that his answers might tend to crimi- 
nate him; and although his declination mar tend to prejudice 
him upon a trial. In rendering more difficult the production of 
evidence of character or reputation in his behalf the indictment 
against him shonld not for such reasons be set aside. 

MoTioiT to set ftBide or dismisB an indictment. 

Charles E. F. McCann, for motion. 

Charles 8. Whitman, district attorney, opposed. 



Ckaih, J.: 

This is a motion to set aside or diamias an indictment 
which charges the defendant irith the crimes of grand larceny 
in the second degree and criminatlj receiving stolen property, 
knowing the same to have been stolen. 

The moving papers all^ in substance that, before the find- 
ing of the indictment, the defendant was arrested bj an officer 
acting at the instigation of the commissioners of accounts, 
without a warrant, on the chai^ of carrying meat through 
the street without a permit from the board of health; that 
this charge was nnfonnded and was abandoned when the 
defendant was arraigned before the magistrate; that he was 
then chained with the crimes of grand larceny in the second 
d^ree and attempted bribery; that while hearings upon snch 
chaises were pending he was served with a subpoena duces 
tecum, r^niring him to attend and produce the books kept 
by him in his business before the commissioners of accoonts, 
in an investigation then pending before them, involving, among 
other things, the matters npon which the chai^ against him 
of larceny was predicated ; that he appeared before such com- 
missioners pursuant to snch subpoena and produced his books; 
that he protested against such books being opened by such 
commissioners and they were not opened; that he objected to 
being sworn, but was sworn ; that he was thereupon- inter- 
rogated by such commissioners and answered questions to a 
point where he declined to answer on the ground that his 
answers might tend to incriminate him; that some ten days 
afterward be was indicted, charged as above ; that subsequently 
to the finding of the indictment the commissioners of accounts 
were required to produce and did produce the defendant's 
books before the grand jury, and that such books were after- 
ward seen open in the office of the assistant district attorney 
who had conducted before the grand jury the inquiry which 
resulted in the defendant's indictment. 



An anawermg affidavit hy such assistaDt district attorney 
is filed, ailing in substance, that snch books were not befoie 
the grand jury at the time of finding the indictment and that 
their contents were oot disclosed to such grand jury in con- 
nection with anj charge against the defendant 

The defendant urges in support of his motion that the 
undisputed facts, as above disclosed, show that in several re- 
spects his rights were invaded. He specifies, aa one of such 
invasions, his arrest without a warrant on the misdemeanor 
charge and asserts that the illegality of such arrest is not 
cured by the shifting of the chai^ against him to one imput- 
ing the commission of felonies. He specifies as another such 
invasion the issuance and service upon him under the circum- 
stances stated of the subpoena. He asserts that compelling 
him to be sworn under such subpcena was a further invasion 
of his rights. He asserts that compelling him to answer ques- 
tions to a point where for protection he was required to assert 
his privilege to decline to answer further invaded his rights, 
and he finally urges that the mere production of his books 
before the grand jury which had already indicted him was a 
further invasion. His contention is that these alleged inva- 
sions, either separately considered or in their entirety, require, 
as matter of law, the dismissal of the indictment. 

Before an indictment can properly be dismissed, there must 
appear to be either statutory or constitutional ground for its 

It may be conceded that the defendant's arrest under the 
chaige as made by the arresting officer was unlawful because 
made without a warrant. It may be conceded that its un- 
lawful character was not changed by the subsequent prefer- 
ment of other charges against the defendant upon which be 
could have been lawfully arrested by an officer without a 
warrant. It may be conceded that there was such a relation 
betwerai the charge as finally made against the defendant 



and the matter nnder inveetigatioQ by the coDunisaionere of 
accounts that the issaance by them of the Bubpcena referred 
to was mider the circnmstancee an invasion of the defend- 
ant'a rights. It may be conceded that for this reason he 
could lawfully have refused obedience to it and successfully 
resisted proceedings to punish him as for a contempt in dis- 
obeying it. It may further be conceded that he could have 
prevailed, had he moved the court to vacate and set it aside, 
and that be was not required to appear and be sworn and 
answer to a point where he conid claim his privilege to de- 
cline to answer. And, finally, it may be conceded that the 
course in fact pursued by bim in being sworn and declining 
to answer on the ground that to answer might tend to in- 
criminate him may prejudice him upon a trial in rendering 
more difficult the production of character or reputation evi- 
dence in his behalf. But it does not follow that, because 
some statute has been violated in the course of the proceed- 
ings against bim or because some right guaranteed to bim 
by the Constitution has been invaded, the indictment found 
against him must be dismissed. It must appear that the 
wrong to bim was in some way connected with the finding 
of the indictment and that the dismissal of it aa a conse- 
quence ia either required by the provisions of section 318 
of the Code of Criminal Procedure, or because the finding 
of it was an invasion of bis constitutional prerogatives or 
an act of oppreesion or persecution. People v. Glen, 173 
N. Y. 395. The moving papers fail to show the required 
connection between the wrongs complained of and the find- 
ing of the indictmatt, and such finding and such allied 
wrongs are aeemin^y unrelated. 

The connection between the defendant's alleged causes of 
complaint on the one hand and the finding of the indictment 
on the other is not established by the circmnstance that the 
charge in the indictment is the one on which he was exam- 



ined before the magistrate, nor yet by the fact that the 
Bnbject-matter of inquiry before the eomimsaiouers of ac- 
counts embraced the transaction on which the indictment 
rests. To establish such connection it mnet affirmatively 
appear that what the defeudaot alleges was illegally or nncon- 
stitutioually done and that of which he complains influenced 
the finding of the indictment in the sense that, withont such 
alleged illegal or anconstitutional action, the indictment 
would not have been found. That is to say, the alleged 
wrongs of which the defendant complains must appear to 
have been at least a contributing cause to the finding of the 

If the defendant had not been ill^ally arrested, as he 
asserts, but legally arrested; if he had not been wrongfully 
served with the subpoena, aa he aaserts, or being served had 
disobeyed and not obeyed it, or disobeying it had answered 
none of the questions which he did answer, or declined to 
answer no question on the ground upon which he did de- 
cline to answer some questions, or never had had his busi- 
ness books in the grand jury room or in the hands of the 
district attorney, non eonatat that he would not have been 
indicted just as he has been; for there is nothing to indicate 
that all or any of these circumatancea were known to the 
grand jury, or, being known, that they or any of them oper- 
ated upon their minds in the finding of the indictment. 

Thus the arrest of the defendant without, rather than with, 
a warrant cannot be said to have been an operating circum- 
stance in the finding of the indictment. Nor can the chang- 
ing of the nature of the charge against him when he was 
before the magistrate, as it does not appear that he was held 
by the magistrate to await the action of the grand jury, but, 
on the contrary, that the indictment whs found while the 
examination before the magistrate was pending. Kor can 
the issuance of the subpcena by the commissioners of aooonnts^ 



nor ita service upon him, nor bis obedience to it, nor what 
he did before tb^n, be said to have inflaenced the finding of the 
indictment, as the papers on the motion nc^tive that these 
matters or any of them were brought to the attention of the 
grand jury. Nor can the production of his books before the 
grand jury be said to have affected the finding of the indict- 
ment, not only because it affirmatively appears that they were 
first taken to the grand jnry room some time after the in- 
dictment was found, but because it also affirmatively appears 
that they were not opened in the presence of the grand jury 
or their contents made known to the grand jury until after 
the indictment was found and then not in connection with any 
charge against the defendant 

There is no ground for inferring that there was not a 
sofficiency of legal evidence before the grand juiy to war- 
rant the finding of the indictment. Nor ia there reason to 
believe that it rests upon illegal or incompetent testimony. 
Nothing ia disclosed from which an inference should be 
drawn that the finding of it is tainted with either oppression 
or persecution, and it stands sustained by the presumption 
which exists in favor of its regularity and l^;ality. 

To hold that a mere illegal arrest by an officer, or an un- 
lawful issuance of a subpoena by commissioners of accounts, 
or the omission of a defendant to avail himself of his more 
efficient remedies when so served, or a procurement and ex- 
amination of a defendant's books by a district attorney sub- 
sequent to the finding of an indictment render of themselves 
a defendant so proceeded against inuntme from indictment, 
would be a doctrine as novel as it is dangerous end as dan- 
gerous as it ia unnecessary. It would confer upon subordi- 
nate ministerial officers a pardoning power, put a premium 
upon a defendant's omission to assert and enforce his rights 
and make his prosecution, contrary to the decisions, to de- 



pend upoa tbe lawfulness of the means adopted hj the offi- 
ceiB of the law to obtain evidence against him. People t. 
Adams, 176 N. T. 851. 

The motion to <tiamiw the indictment is denied. 



Deo. leiO. 


iRNcnmra: RBQcnnxs aud 8 u> f i o im ct or tec Acovunoir— Imnra; 
Jomnx AXu 8EPAUTn>H or Codhts ahd BuEomiT— Hujoodb 
or Dutmcr Ofikhbis. 

Where certain counts In <ui Indictment ch&rge the defendknt 
with hsTlng telanlon>l7 taken moneTa of a certain compBii7, and 
othera charge the like taking of monera of the same compaar de- 
poaltad In a bank, but It la plain that all the sronnda relate to the 
■ame transaction, the indictment does not rlolate the statute pro* 
vldlng that an Indictment mnst charge but one crime. 

In such a case, vhere It is plain the defendant has not been 
misled, the statement that the moners were on deposit in a bank, 
which would Import that they were moneys of the bank and not 
of the depositor, mar he stricken ont as surplusagei 

A statement that moners were telonlouslr taken Is a snflklent 
statement of a criminal Intent on the part of the taker. 

DEHtntBEBS to indictmesta. 

Myron D. Short, district attorney {Stephen J. Warren, of 
eounael), for people. 

Frank Rice, Eohert F. Thompson (Daniel J. Kenefick, of 
counsel), for defeadants. 

Cl&bk, 3. : 

The defendants were indicted hj tbe Ontario conn^ grand 
jury in December, 1910, for grand larceny in the first degree. 
There were seventeen different indictments, chaif^ing one 
offense in each indictment and on a specified date, and eepar- 



8te demnrrera were interposed to each indictment on the 
ground that more than one crime was charged in each indict- 
ment, that the several connta were inconsistent with each 
other, and that some of the connts in each indictment did not 
charge a crime. The indictments were all in the same form, 
and the demurrers were argued together, and thej will be dis- 
posed of in the same manner. 

Each indictment contained ei^t counts, the first foor 
charging that, on a certain date named, the defendants took 
certain moneys, the property of the Lisk Manufacturing 
Companj, then on deposit in a certain bank named in the 
indictment, and the last four counts make no reference to 
the moneys being deposited in a bank, but allege that the 
said moneys were the property of the Lisk Manufacturing 
Company, a corporation of which the defendants were officers 
at the times the crimes charged were committed. 

Defendants attack the indictments, claiming that two sepa- 
rate crimes were charged became^ by the first four cotmts, 
even though the moneys are alleged to have been the prop- 
erty of the Lisk Manufacturing Company, it is also alleged 
that said moneys were on deposit in certain banks named, 
and that by the last four counts the moneys alleged to have 
been taken are stated to have been the property of the Liak 
Manufacturing Company, and that, inasmuch as the moneys 
which were in the banks became the property of the banks 
when the deposits were made, the first four counts in the 
indictments actually charged stealing moneys of the banks, 
whereas the last four counts charge stealing moneys of the 
Lisk Manufacturing Company, and consequently two separ- 
ate and distinct crimes are charged in each indictment. 

Section 278 of the Code of Criminal Procedure provides: 
** The indictment must chai^ but one crime and in one form, 
except as in the next section provided." 

Section 279 of the Code of Criminal Procedure reads as 



follows: "The crime may be charged in separate counts to 
have been committed in a different manner, or by different 
means; and, where the acts complained of may constitute dif- 
ferent crimes, such crimes may be charged in separate counts." 

These two sections must be read together. People v. In- 
field, 1 New York Crim. 146. 

The amounts of money claimed to have been stolen, the 
date of the crime, the names of the parties and the place 
where the crime is alleged to have been committed are stated 
in each indictment, and they are in the same form, and a 
reading of any one of them, without regard to what had 
been said on either side with reference to their validity, leads 
irresistibly to the conclusion that, although some of the counts 
were quite unnecessary, still it is plain that in each instance 
the counts relate to one transaction, the crime being charged 
in different ways, and that course the pleader had a right 
to adopt so as to meet the facts as they might develop on a 
trial People v. Bumar, 106 N. Y. 510; People v, Adler, 
140 id. 331 ; People v. Dimick, 107 id. 13 ; Hawker v. People, 
75 id. 489. 

The indictment in each case contains a statement of the 
act constituting the crime charged, so that it is readily con- 
ceivable that the defendants could not be misled or mysti- 
fied, and that being so it could not be held defective so long 
as the rights of the defendants are in no way prejudiced. Code 
Crim. Pro., §§ 284^ 285; People v. Lammerts, 164 N. T. 
144; People v. Willis, 158 id. 392. 

It was wholly unnecessary for the pleader to have inserted 
in the indictments an allegation that the moneys allied to 
have been stolen by defendants were on deposit in a bank, 
but I think these all^ations must be regarded as mere sur- 
plusage and have no more effect than as thougfi he had in- 
serted an allegation that the moneys charged to have been 
stolen were on a particular shelf, or in a particular drawer, 



or hidden in a kettle, or some other receptacle for safe keep- 
ing; and the allegations that the money stolen were on de- 
posit in a bank, being surplosage, vonld not vitiate the in- 
dictmentB. People v. Laurence, 137 N. T. 517. 

The defendants' objection that the indictments failed to 
allege in connta 3, 4, 7 and 8 that the moneys were taken 
with an intention to deprive and defraud the true owner of 
its property is not well taken. It will be observed that in 
each one of these counts it is charged that the moneys were 
feloniously taken, etc., and for the purpose of an indict- 
ment I think the words used in these counts were sufficient to 
charge a crime. 

While it is true that a criminal intent is of the very 
essence of the crime of larceny, still, whether or not such 
criminal intent existed is a matter to be determined upon 
the evidence adduced on the trial and to be disposed of at 
that time; but, for the purpose of charging a crime in a plead- 
ing, the language used in counts 3, 4, 7 and 8, is deemed to 
be sufficient. 

The objections raised to the demurrers appear to be tech- 
nical and do not go to the substance of the controversy. 
These indictments are certainly sufficient to inform the de- 
fendants of the nature of the charges against them. There 
is nothing mystifying about them. What they mean is that 
the defendants are charged in varioos ways with stealing 
moneys of the Lisk Manufacturing Company, they being 
officers of that company and having had control of these 
moneys. Sufficient information is given by the indictments 
so that defendants can prepare for trial, and they cannot 
possibly be misled. 

The real test is, If defendants were tried on any one of 
these indictments, would the result of that trial be a bar to 
a second prosecution for the same offense t 

There is no sort of doubt but that it would be a bar to a 



second prosecution, for, while it mhy well be that some of 
the counts in the indictments could have been omitted, still 
no harm has been done hy charging the crime in each indict- 
ment in eight different counts. Defendants have not been 
misled and their rights have not been prejudiced in any way. 
But one crime is charged in each indictment^ although it is 
charged in different ways; and I think a proper adminis- 
tration of the criminal law requires that the objections raised 
he orerraled. 

The demurrers £led to the indictments against the defend- 
ants are in each instance overruled, and orders may be en- 
tered accordingly. 

Demurrers overmled. 



Dm. 1810. 


(TO Misc. 196.) 

GujfD JcxT — Pbxsbkck or Btehooaphis— OuAuncATioir or— Ihdhtt- 
ifEirr — FiKDina add Fujro aud Fobhai. Riquisnvs. 

A peraon designated as temporur stenoKrapher to a grand Jmr 
In the absence of the offlclal stenographer Is not required to be a 
resident of the countj- 

In such a case, one dMlgnated as temporary stenographer even 
it lacking prescribed qnallQc&tlon vould, nevertheless, be a d« 
facto offlcer and his acts would be ralld, and his presence before 
the grand Jury when evidence was taken would not vitiate an 

Motion to dismiss iodictioeDts. 

Joseph J. Tvohy, for the motion. 

Edward B. O'Malley, Aitomey-Qeneml {Arthur C. Troin, 
Special Deputy Atlomey-Oeneral, of counsel), opposed. 

Kappeb, J.: 

The grand jury of Queens county found eight indictments 
againat the defendant which he now moves to set aside upon 
the ground that the grand jury stenographer was not a citizen 
and resident of Queens county which, the defendant says, 
are prerquiaite qualifications, and that the taking by that 
stenographer of the testimony given before the grand jury 
upon which the defendant was indicted violated subdivision 
2 of section 313 of the Code of Criminal Procedure which 
requires the court to set aside an indictment, " When a per- 



son haa been permitted to be present during the setsioQ of 
tile grand jury, white the charge embraced in the indictment 
was under consideration, except as provided in sections two 
hundred and aiztj-two, two hundred and aixty-three and two 
hundred and sixty-four." Sections 262, 263 and 264 of the 
Code of Criminal Procedure only authorize the presence before 
the grand jury of the district attorney or one of his assistanta. 
But, notwithstanding these explicit exceptions, the attendance 
of stenographers upon the grand jury has been authorized by 
statute since 1885 (Matter of Montgomery, 126 App. Div. 
72; People v. Steinhardt, 47 Misc. Rep. 252), and the codi- 
fication of all statutes relating to grand jury stenographers 
permits their appointment by the district attorney in every 
county of the State and their attendance and presence at the 
sessions of the grand jury. Code Crim. Pro., § 952p et seq. 

The defendant does not complain of the presence before 
the grand jury of a stenographer, but says that the stenog- 
rapher in question was both a citizen and a resident of Kew 
York county, and that, as section 952q of the Code of Crim- 
inal Procedure provides that " Every stenographer appointed 
under the provisiona of this title shall be a citizen and resi- 
dent of the county in which he is appointed," the stenog- 
rapher in question was disqualified and, hence, was a per- 
son whose presence during the session of the grand jury which 
considered the charges against him was forbidden by section 
313, supra. 

The answering affidavit on behalf of the people shows that 
the Governor directed the Attorney-General to attend before 
the Queens county grand jury, summoned at the October, 1910, 
term of the Supreme Court for the purpose of aiding in investi- 
gating certain alleged offensea by public ofiBcials and persona 
having public business with such officials, and that after an 
examination of upward of one hundred witnesses the official 
stenographer became ill, whereupon the district attorney of the 



coQDtj temporarilj designated the stenographer of whom the 
defendant now complains. 

Section 95Sw of the Code of Criminal Procedure provides 
as follows : " Designation of temporary Bten<:^apher. In case 
of the absence by reason of illness, or other cause, of the official 
stenographer to any grand jury in any county of this state, the 
district attorney of the county may designate a stenographer 
to perform the duties of such official stenographer during such 
absence, and the stenographer so designated shall receive the 
compensation which the official stenographer would have received 
for the same service, and the same shall be deducted from the 
salary of the official stenographer." 

My reading of the section just quoted satisfies me that the 
Legislature intended to except a temporarily designated 
Btenograpber from the prerequisites of citizenship and residence 
in the particular county. Just what difference it makes whether 
a duly qualified and sworn grand jury stenographer is a citizen 
of one rather than of another count; is not apparent to me; 
and, in view of the district attorney's confidential relation to the 
public interests, it may well be doubted whether the Legislature 
may so restrict him in bis field of selection. People ex rel. 
Flood V. Gardiner, 167 N. T. 620. But, be that as it may, the 
temporary designation of a stenographer to the grand jury, so 
far as concerns citizenship and resident in the county, can well 
be distinguished from the permanent appointment of an official 
stenographer. A number of reasons might be assigned for the 
distinction of which one will suffice. If, on the last day fixed 
by the Statute of Limitations for the finding of an indictment, 
the official stenc^apher should be taken ill, the administration 
of the criminal law ought not to fall because the temporary 
services of a duly qualified stenographer resident in the county 
cannot be obtained. It will be noted that the section providing 
a temporary stenc^apher permits the district attorney to 
" designate a atent^apher to perform the duties of euch official 



Btenographer " during tlie abeence or illness of the latter, -with- 
out any qaalification whatever ; while the section that fixes the 
residence qualification plainly refers to the Btenographer who 
is " appointed " as the permanent or " official stenographer." 

But, even though the temporarUj designated stenographer 
were within the purview of the section fixing residence and 
citizenship as a prerequisite, the presence before the grand 
jury of one lacking those qualifications does not, in mj opinion, 
invalidate an indictment. Such a stenographer is, at least, a 
de facto official and his service stands as a public act. If the 
district attorney himself, subsequently to the findings of the 
indictments, had his title to office succesafullj contested, bis 
acts during his incumbency would be those of a de facto officer 
and would be upheld. 

In People v. Fetrea, 92 N. Y. 128, the indictment was 
found by a grand jury drawn under a statute which the court 
held to be unconstitutional. But the iudictment, nevertheless, 
was sustained as the finding of a de facto grand jury. The 
court (p. 143) say: " We are of opinion that no constitutional 
right of the defendant was invaded by holding him to answer 
to the indictment The grand jury, although not selected in 
pursuance of a valid law, were selected under color of law and 
semblance of legal authority. The defendant, in fact, enjoyed 
all the protection which he would have had if the jurors had 
been selected and drawn pursuant to the general statutes. 
Nothing could well be more unsubstantial than the alleged right 
asserted by the defendant under the circumstances of the ease. 
He was entitled to have an indictment found by a grand jury 
before being put upon his trial. An indictment was found by 
a body, drawn, summoned and sworn as a grand jury, before 
a competent court and composed of good and lawful men. This 
we think fulfilled the constitutional guaranty. The jury which 
found the indictment was a de facto jury selected and organized 
under the forms of law. The defect in its constitution, owing 



to the inralidity of the lav of 1881, affected no Bubatuitul ri{^ 
of tbe defendant. We confine oar decision npon this point to 
the case presented bj this record, and hold that an indictment 
found hj a jnrj of good and lawful men selected and drawn 
as a grand jury nnder color of law, and recognized by the conrt 
and sworn as a grand jury, is a good indictment hj a grand 
jnry within tbe sense of the Conatitntion, althongji the law 
under which tbe selection was made, is void." 

In People t. Scanndl, 87 Misc. Bep. S45, it was held that 
an objection to an individoal grand jnror, that he was not a 
resident of the coon^ where the indictment was found, is not 
available after indictment fonnd, nor can snch a disqualification 
Titiate tbe indictment. 

This being so of grand jnrors, it followa that whether the 
stenographer was a resident and voter of the connty cannot be 
inquired into after indictment for tbe purpose of setting it aside. 

For tbe forgoing reasons the motion should be denied; and, 
in reaching this conclusion, I am impressed with the serions 
results that would flow from a granting of the defendant's 
motion. Tbe setting aside of these indictments would require a 
like ruling in the case of some sixty or more indictments fonnd 
and returned by tbe same grand jury against public oflScials of 
Queens county and others who have had dealings with such 
officials, besides nullifying the results of a mass of investigation 
carried on by the same grand jury since such indictment were 
returned. In this investigation upwards of five hundred wit- 
nesses have been examined and tbe services of a special deputy 
Attorney-General have been constantly enlisted for more than 
two months. The expense to tbe connty and the labors of tbe 
patriotic citizens composing the grand jury have been enormous ; 
and, while the legal rights of accused parties must be sednlonaly 
preserved, the public interests ougjit not to suffer on any such 
shadowy and tmsubetaatial ground as is here advanced. 

Motion draiied. 



Deo. 1910. 


(70 MlM. 196.) 

Where an Indtetment allagefl In one count the felonloui appro- 
priation OS a certain dar of a certain sum belonging to tbe city 
ol New York while In the coalody and control of the defendant ai 
anperlntendent of eewera, and in another count the felonious ap- 
propriation of an equal anm paid on the same dar to defendant aa 
inch snperlntendent for aewer pennltB, and the two connta do not 
In any manner appear to relate to the same act or transaction and 
tbe Indictment doea not bo state. It must be held to Tlolate the 
■tatate prorldlng that an Indictment must charge but one crime. 

In anch a case, a demurrer to the Indictment must be miBtalned, 
although the Statute of Llmitationa will prevent the finding ol 
a new one. 

Dbhukbbb to indictment 

Arthur Train, Deputy Attomey-Oeneral, for plaintiff. 

Eugene N. L. Young, for defendant. 

Kappeb, J. This indictment must fall for duplicity. It 
cbargee two wholly nnrelated and distinct larcenies. While 
it allies both to have been committed on the same day and 
of tbe same amount, there is nothing to show that that amotmt 
was the some misappropriation in both counts. The first connt 
alleges that |260 belonging to the city of New York, while in 
tbe custody and control of tbe defendant as superintendent of 



seweiB, wae, on September 28, 1905, felonioiialy appropriated 
b; him to his own lue with intent to deprive the citj, the true 
owner, thereol 

The second count alleges that, on September 25, 1905, $250 
was paid to defendant, as auperintendent of sewers, by the 
Mathews Construction Company for sewer permits, which sum 
defendant, on September 28, 1905, feloniously appropriated 
to his own use with intent to deprive said Uathews company, 
the true owner, thereof. 

If, from the whole structure of the indictment, it could be 
said that but one crime was charged to have been committed 
in two different ways, relative words in the second count con- 
necting the identifying facts with the first count might be 
dispensed with. But the court cannot supply such connectives 
when two separate thefts are charged, in nowise connected with 
each other, oor in any manner appearing to have been the same 
act or transaction. 

The command of the Code of Criminal Procedure is that 
the indictment must charge but one crime (section 278). 
And while, by the next section (279), this crime may be 
charged in separate counts to have been committed in a different 
manner or by different means, it must fairly appear that the 
separate counts relate to one and the same crime. To say that 
of this indictment requires the court to arbitrarily read into 
the second count language which, in effect, says that the $250 
stolen from the Mathews company is the same $250 which the 
defendant stole from the city of New York, or language in the 
first count that the $250 therein referred to came into defend- 
ant's custody for and on behalf of the city by reason of the 
payment thereof to him by the Mathews company for sewer 

I do not mean to hold that the words " different means " or 
"different manner," contained in section 279 (supra), may 
not properly comprehend the naming in the separate counts 



of two different persons as the owner of the stolrai property, 
in order to meet possibly varying proofs on the trial; but, where 
an indictment in one count charges a custodian with a misap- 
propriation of the city's money, and in the next count chargefl 
that a private company bad paid him a sum for sewer permits 
which he thereafter stole from that company, and these facts 
stand alone without a charge that the larceny referred to in 
both connts was one and the same crime, or any words from 
which that might reasonably be inferred, then the indictment, 
in my opinion, charges two separate crimes, not arising out of 
the same act or transaction, and violates section 278 of the Code 
of Criminal Procedure. 

Taylor v. People, 12 Hun, 212, does not uphold this in- 
dictment. The rule there enunciated, and which is relied 
upon to support it, is that, where it is apparent from the 
general tenor of an indictment containing different counts 
that each relates to the same transaction, it may be treated 
as an indictment for one offense described in different ways. 

The rule itself is not challenged, but its application to the 
case at bar argues against, and not for, the indictment Nothing 
in this indictment shows it to be apparent that both counts 
relate to the same transaction. For aught that appears, the 
defendant may have been the custodian for the city of a sum far 
in excess oi the $250 alleged in the first count to have been 
feloniously appropriated, and that sum may have come to him 
from numerous sources wholly independent of the Mathews 
company which is not referred to at all in the first . count. 
Surely the mention of the Mathews company in the second count 
only, and as the payer to the defendant of $250 for sewer 
permits which be thereupon stole, does not allow of the inference 
that it was the same $250 referred to in the first count. One 
of the main objects of an indictment is to inform the accused 
of what he is called upon to defend (People v. Dumar, 106 N. 
T. 510; People v. Schlessel, 127 App. Div. 612) ; and, apply- 



ing that test to the indictment here, it seems beyond question 
that the defendant is subject to testimony against him on two 
wholly diatinct larcenies. 

An indictment cannot properly leave any of the essential 
facts to inference. People v. Kane, 160 N. T. 380. 

And in People t. Lewis, 111 App. Div. 560, it was said: 
" It is anqueationably tme, that an indictment must contain 
every essential element of the crime charged, and the charge 
mast be made directly and not inferentially, but it is equally 
true that a count in an indictment is good if the facts there 
stated, and those stated in a preceding count to which reference 
is made hy apt and appropriate words, contain all the essential 
elements of the crime charged against the defendant and for 
which he is tried." 

The authorities are uniform that the several counts in an 
indictment must relate to or arise out of the same criminal act 
or transaction (Hawker v. People, 75 N. T. 487 ; People v. 
Wilson, 151 id. 409; People v. Callahan, 29 Hun, 580) ; or, as 
was said in People v, Adler (140 N. T. 331), the joinder must 
be " based upon a continuous transaction." So, also, it was 
held a proper joinder of a charge of robbery with one of larceny 
where each chat^ was founded npon the taking of the same 
aiiielea of personal property from the same person at the same 
person at the same time and place, one charging it to have been 
taken with, and the other without, violence to the person of the 
owner. People v. Callahan, supra. 

In People v. Harmon, 49 Hun, 658, the defendant was 
charged with selling intoxicating liquors on Sunday, the 26th 
of February, 1888, and is another count with the giving away 
of intoxicating liquors on Sunday the 18th day of March, 1888. 
In sustaining a demnrrer, the General Term say (p. 660): 
" It would have been competent to have charged that the offense 
was committed on Sunday, the twenty-sixth of Febroary, by the 
selling of intoxicating liquors, and to have cbaq;ed in another 



count the same offense, at the same tim«, by giviiig awaj 
intozicatiiig liquors. And by the provision to the effect that 
' where the acts complained of may constitute different crimes, 
BQch crimes may be charged in separate counts/ we nnderstand 
it to refer to crimes having different degrees, snch as murder 
and manslaughter, where the criminal act may constitute dif- 
ferent crimes. The act of selling intoxicating liqnors on Sun- 
day, the twenty-sixth day of February, could not constitute the 
offense of selling or giving away on any other Sunday, for such 
seUiug or giving away would be a separate and distinct offense." 

The argument is made at bar that because the larcenies 
charged were committed on the same day they were, therefore, 
one and the same offense. This conclusion cannot follow, unless 
it is to be admitted to be a physical impossibility to commit two 
separate thefts in one day. 

While no indictment precisely like that here under review 
appears to have been the subject of judicial discussion in our 
State, indictments of general similarity have been passed upon 
elsewhere in accord with the view herein entertained. 

In People v. Shotwell, 27 CaL 394; the indictment was 
for forgery. It contained two counts, in each of which a 
copy of the instrument alleged to have been forged was set 
ont, and from which it appeared that both copies were alike. 
The California Code of Criminal Procedure provided for a 
demurrer to the indictment upon the ground that more than one 
offense was charged therein. Another provision was that an 
indictment should charge bnt one offense, but that it could be 
set forth in different forms under different counts. The statutes 
were practically the same as those of New York. It was held 
that the court would not premane that each check set forth in 
the different connts was a copy of only one and the same 
original instrument without an allegation to that effect in the 
»etond count. 

In People v. Thompson, 28 CaL 214, arising under the 



same statutes, it was held that, if an indictment contains more 
than one connt, it should appear clearly on ita face that the 
matters set forth in the difFerent coonts are descriptive of one 
and the same transaction, and that the words " said," afore- 
said," or equivalent expressions in the second count of an in- 
dictment, are necessary to fix the identity of the offense tberein 
stated with that stated in the first count. And the conrt there 
sa; : " Suppose, from the evidence in the possesBioQ of the 
pleader and upon which the indictment is to be framed, it is 
doubtful whether the stolen goods were the property of A. or 
B., and it is material for the purpose of identifying the larceny 
to allege the ownership of the goods with certainty. In such 
a case two counts, one alleging the ownership in A. and the 
other in B., is proper. But it must appear from the averments 
in the second count that the larceny therein set forth is the 
same as that charged and described in the first count, and unless 
this ia done the indictment will be obnoxious to the objection 
that it charges more than one ofFense." 

So also in Montana (Territory r. Poulier, 8 Mont. 146), 
an indictment for forgery contained two counts. The first 
charged the defendant with falsely making and forging an in- 
strument, the second with falsely uttering and publishing an 
instrument. The instruments as described were the same as to 
words, figures, and dates, but the indictment did not charge that 
they were one and the same. A demurrer to the indictment 
was sustained below on the ground that it charged two separate 

This ruling was upheld on appeal, the court saying; " The 
separate counts must directly, and not inferentiaUy, refer to 
the same instrument. In this case there is nothing in the 
second count to show that the instrument there set out, and 
declared to have been falsely uttered by the defendants, is the 
same instrument declared upon in the first count. It may be 
that they are separate instruments, and, if so, then the indict- 



meBt is clearly bad for duplicity. We cannot infer that the 
two inslruments are in fact but one, merely because they contain 
the Bune words, figures, and dates." 

The Court of Appeals have said, that " It requires no argu- 
ment to show that a prisoner has a substantial interest in being 
protected, against several accusations in the indictment, which 
send him to his trial charged with the conuuission of two or 
more crimes of an utterly difierent nature " (People v. Adier, 
140 N. Y. 336) ; and that, if more than one crime is charged, 
except as permitted by section 279 of the Code of Criminal 
Procedure, " the proper and only remedy is by demurrer," 
People V. McCarthy, 110 N. Y. 314. 

The defendant having availed himself of the remedy by 
demurrer under subdivision 3 of section 323 of the Code of 
Criminal Procedure, upon the ground therein stated, " that 
more than one crime is charged in the indictment within the 
meaning of sections 278 and 279," it follows for the reasons 
above stated that the demurrer most be allowed. 

Ordinarily, the allowance of a demurrer might be accom- 
panied by a direction that the case be resubmitted to another 
grand jury, where there is a probability that the objection can 
be avoided in a new indictment (Code Crim. Pro., § 327), 
but the crimes here set forth are alleged to have been comlnitted 
more than five years ago; therefore, a new indictment cannot 
be found. Code Crim. Pro., § 142. The effect of the Statute 
of Limitations has been urged against the allowance of this 
demurrer, but a demurrable indictment cannot be validated by 
the fact that the Statute of Limitation prevents the finding of a 
new one. 

In People v, Qeyer, 196 N. Y. 364, the defendant was con- 
victed under an indictment charging the larceny of a bank 
check for $500. The proof was that he lawfully received and 
deposited the check to his ovm credit, but that he afterward 
misappropriated the proceeds of the check thus deposited. The 



trial conrt permitted an amendment of the indictmeBt to om- 
form to the proof. The Court of Appeals, after holding the 
amendment to be reversible error (p. 371), saj: " While appar- 
ently in view of the Statute of LimitatioDs this defendant may 
escape merited punishment for -wrongful acts, it ie impossible to 
prevent this result in the disposition of this appeal in view of 
the serious errors which have been committed." 

Demurrer allowed. 



Deo. 80. 1810. 



<141 App. DlT. SSI.) 

Gbuoc— DiSCMnOLT Pnsoit— ABuntoniHa Wm. 

Wbere a wtte abandoiu her husbutd, vho ahnrs bam bees and 
■till la able to aapport ber, and the la In no danger of becoming 
a public charge, he abmild not be convicted aa a dlaorderlr peraon. 

Appbal by the defendant, Otto Boettcher, from a jndgment 
of the Court of General Sessions of the Peace in and for the 
county of New York, entered on the 25th day of October, 1910, 
afl^rming a judgment of a city magistrate of the city of New 
York convicting the defendant as a disorderly person. 

William Brutmer, for the appellant 

Theodore Connoly, for the respondent. 

Per Citbiam: 

This is an appeal from an order of one of the judges of the 
Court of (General Seasions afGrmiug a judgment of a city magis- 
trate convicting defendant as a disorderly person. The judg- 
ment of conviction shows that appellant was charged with and 
convicted of abandoning relator, bis wife, and leaving her with- 
out proper means of snpport, so that she was liable to become a 
burden npon the public. The evidence before the city magis- 
trate showed clearly that it was the wife who abandoned the bus- 
band; that the latter always bad been and still was able and 



willing to sapport her, and that she was in no danger of becom- 
ing a public charge. Tbe case falls precisely within the rule 
declared hy this court in People ex rel. Demos v. Demos (115 
App. Div. 410). 

Tbe order appealed from was erroneous, and both it and the 
judgment of conviction must be reversed. 

Present — Inqbaham, P. J., Ci.abex, Scott, Milibb and 


Order and judgment reversed. Settle order on notice. 



Jan. 8, 1811. 


(!W) N. T. 876.) 

Altbougb tbe contummated offeiue of extortion, whether ae- 
compUshed by rerbal or written threats, It a felony, an nnsucceo*- 
tnl attempt to extort money by meani of verbal threats la a 

Appbai. from an order of the Appellate DiviBion of tfae 
Supreme Court in the fourtli judicial department, entered 
July 18, 1910, which reversed an order of the special county 
judge of Monroe connty sustaining a writ of habeaa corpus 
and directing the diachai^ of the relator from custody. 

The facts, so far as material, are stated in the opinion. 

Louit E. Fuller for appellant The nncouBummated attempt 
to commit extortion hy means of a verbal threat ia a misde- 
meanor as defined by and punishable under section 857 of the 
Penal Law. {President, etc., v. Kaldenberg, 165 N. Y. 1; 
Mayor v. M. By. Co., 148 N. Y. 1 ; Matter of N.T.&B .R. Co., 
72 N. Y. 627; Benton v. Wichvire, 64 N. Y. 226; Johnson v. 
H. B. B. Co., 49 N. Y. 455 ; MeKeehnie v. Trmtees, 44 N. Y. 
Supp. 317; MeClvsky v. Cromwell, 11 N. Y. 593; People v. 
Wvod, 71 N. Y. 371; People v. Davenport, 91 N. Y. 574; 
Endlich on Interp. of Statutes, §§ 238, 239; Gorman v. Ham- 
mond, 28 Oa. 85; People t. Tindale, 57 CaL 104.) 



Howard H. Widener, District Attorney (Charles B. Beehtold 
of coonsel), for respondent Ad attempt to commit the crime 
of extortion, as set fortli in the indictment, is a felony. 
(People V. Lyon, 99 N. T. 210; People V. Tan Steenburg, 1 
Park. Cr, Rep. 39; Maira v. S. £0. R. B. Co.. 73 App. Div. 
265 ; People v. Borgea, 6 Ahb. Pr. 132 ; People v. Qardner. 144 
N. T. lie.) 

HiscocE, J. This appeal involves the qnestion whether an 
QQSttccesafuI attempt to extort money by means of verbal threats 
is a misdemeanor or a felony, and it arises upon the following 
facta ondisputed here: 

The appellant and another attempted to extort money from 
one Stillson by means of verbal threats to atwuse him of a 
crime and to inform others thereof. While the intended victim 
paid money in apparent response to these threats, he did this 
really acting in concert with the police authorities for the 
purpose of entrapping the accused and his companion, and, 
therefore, the crime of extortion was not consummated, but the 
acts charged amounted to an attempt to commit such offense. 
(PeopU V. Gardner, 144 N. T. 119 ; 9 N. T. Grim. 404.) The 
appellant was arrested and taken before the police justice of the 
city of Rochester and held awaiting examination. Pending 
this he was indicted by the grand jury and arrested by the 
respondent on a bench warrant. If bis offense was a misde- 
meanor, he should have been tried in Police Court; if it was 
a felony, he was properly indicted and taken into custody by 
respondent, and this writ should he dismissed. The decision 
of the question involves the examination of several sections 
of the Penal Law. 

Section 850, article 80, of the Penal Law defines extortion 
as " the obtaining of property from another, with his consent, 
induced by a wrongful use of force or fear," etc. 



Section 861 provides that " Fear, Bach ae will constitate 
extortion, may be induced by a threat * * • ; 

" 2. To accuse him (tbe indiTidual threatened) or any rela- 
tive of his or any member of his family, of any crime." 

Section 852 provides the punishment for extortion, and it ia 
tmdispnted that tbe punishment therein prescribed is of such 
a character as makes tbe offense a felony. It is also beyond 
controversy that under the general provisions of tbe Penal 
Law, if unmodified by special provision, an attempt to commit 
the crime of extortion would also be a felony. 

Section 856 of tbe same article relates to blackmail, and 
provides that " A person who, knowing the contents thereof, 
and with intent, by means thereof, to extort or gain any 
money or other property, or to do, abet, or procure any illegal 
or wrongful act, sends, delivers, or in any manner causes to bo 
forwarded or received, or makes and parts with for tbe pur- 
pose that there may be sent or delivered, any letter or writing, 
threatening: 1. To accuse any person of a crime • * * is 
punishable by imprisonment for not more than fifteen years." 

Section 651, fonud in another article of said Penal Law, 
relates to sending threatening letters, and in substance makes 
the sending of such a letter by a person knowing its contents, 
threatening to do any unlawful injury to tbe person or prop- 
erty of another, etc., a misdemeanor. 

Section 857, found in tbe same article as the preceding sec- 
tions except section 561, and entitled, " Attempts to extort 
money or property by verbal threats," provides : " A person 
who, under circumstances not amounting to robbery, or an 
attempt at robbery, with intent to extort or gain any money 
or other property, verbally makes such a threat as would be 
criminal under any of tbe foregoing sections of this article or 
of section five hundred and fifty-one, if made or communicated 
in writing, is guilty of a misdemeanor." 

It ia contended by appellant that under the section last 



quoted the general rule relating to attempts to commit crimes 
is modified, and that an attempt to commit extortion by mere 
verbal threats anch as occnrred in this case is made a misde- 
meanor. On the other band, the respcmdent insists that said 
section simply relates to such threats to obtain property as 
if in writing would come tmder section 856 and constitute 
blackmail, I am unable to adopt the latter construction. 

Said section 857 by its language specifically relates to an 
attempt to extort or gain money by such verbal threats as 
would be criminal if in writing under any of the preceding 
sections of the article of which it is a part. If the appellant 
and his companion had made in writing the threats which are 
said to have been made verbally with the intent of obtaining 
money, they would have been criminal under section 850 of 
said article as extended by the general provisions defining 
attempts to commit a crime, for, concededly, extortion may 
be accomplished or attempted by written threats. Instead of 
making their threats in writing, tbey made them verbally, and, 
therefore, their attempt came within the express provisions of 
section 857 and was a misdemeanor. 

The argument that section 857 is intended to apply only to 
such verbal threats as if in writing would constitute blackmail 
under section 856 is largely founded on the arrangement of 
provisions as it existed in the former Penal Code. There 
section 558 related to blackmail and section 559 to the sending 
of threatening letters, and then followed section 560, which 
provided that " A person who, under circumstances not amount- 
ing to robbery, or an attempt at robbery, with intent to extort 
or gain any money or other property, verbally makes such a 
threat as would be criminal under either of the foregoing sec- 
tions of this chapter, if made or communicated in writing, 
is guilty of a misdemeanor." On the assumption that the 
word " either " limited the application of section 560 to the 
two preceding sections relating to blackmail and to threatening 



letters, it is argoed that sectioo 857 of the Penal ou^t 
to be likewise restricted in its application and not extended to 
the crime of attempting to conunit extortion. As already in- 
dicated, I do not see bow section 867 conld be so construed', even 
if we should assome that the l^slatnre did have the intent 
to restrict its application to the cases which were covered by 
section 560 of the Penal Code The language which is used 
is so explicit and plain that its obvious meaning cannot be 
avoided by any process of justifiable construction. When a 
section in a given article of a statute says, as in this case, that 
it applies to all of the preceding sections of that article, I do 
not see how the oonrt can decide that it only applies to a part 
of them. Moreover, I am not prepared to assume that the 
legislature had any such purpose, but believe, rather, that it 
intended to equalize, so to speak, the crimes of attempted ex- 
tortion and attempted blackmail by verbal threats. If we 
should adopt the construction contended for by the respondent, 
we should have this anomalous result: If a person by verbal 
threats attempted to extort property from another, and section 
857, as contended, is not applicable to extortion, such attempt 
under the sections relating to extortion would constitute a 
felony. On the other hand, precisely the same attempt under 
section 856 relating to blackmail, as concededly affected by 
section 857, would only amount to a misdemeanor. That is, at 
the option of a district attorney or grand jury the eame offense 
might be treated either as a felony or a misdemeanor. The 
legislature evidently saw the incongruity possible under the 
Penal Code of thus making the same act when prosecuted as an 
attempt at extortion a felony, and when prosecuted as an attempt 
to commit blackmail by verbal threats, so to speak, a misde- 
meanor, and, therefore, in enacting section 857 of the Penal 
Law broadened its terms so as to make the act of equal serious- 
ness whether prosecuted under one section or another. 

It is to be noted in answer to some things which have been 


308 NKW TORK cruonal rbpobts. vol, xxt. 

said in favor of the respondent's view tbat the congtruction 
which we have adopted <Mily applies to a mere att^npt to 
commit extortion by verbal threats. The oonamnmated offense 
of extortion remains a felony aa before, whether accomplished 
}sj verbal or written threats. 

There is nothing in People v. Gardner (144 N. T. 119; 9 
N. Y. Crim. 404,) which controls qs on this question which was 
not raised or discussed in that case. 

These views lead ns to the condnsion that the order of the 
Appellate Division should be reversed and that of the special 
county judge should be affirmed, and the relator discharged 
frcon custody. 

CCI.LSH, Ch. J., Qbat, Vait, WiLL^sn Babtiatt and 
Coujn, J J., concur; Haioht, J., not voting. 

Order reversed, et& 



Jsn. 8, 1911. 


!(1.) MusDEi — Ricx>HD upoir tbx Tbial of a CtrKKDAifT Iin>icra) tob 

HvMDEB ElCamihd) akd EItihiiox Held SumuiEHT to Jitbti>t 


Tlie record apon the trial ol s defendant Indicted for Ute crime 

of murder, commlttMl In order to rob the deceased, examined, 

and held, that the ertdence, conaiatlng of defendant's confesaions 

and proof of Independent facta corroborating tbeae confeaitona, 

leaTM no reaaonable doubt that defendant committed the crlnM 

with which he is charged. The Jorj was Jiutlfled In finding that 

he was not afflicted with permanent mental Iresponilbllltr and 

that he was not temporarily rendered Incapable of appreciating 

hia act at the time he committed the crime as a recnlt of drug! 

and Intoxicating liquors. 

A contention that the conrt, by charging the iatj onlr as to 
the crime of murder In the first and second deKreee, prevented the 
Jar7 from finding the defendant guilty of an offense of a leaser 
degree, is ontenable where defendant's counsel requested no ln> 
stmctions that the Jury might find a yerdict convicting the de> 
fendant of a lesser degree tlisn morder, and, especially, where the 
Jury, althoogh permitted to find the defendant guilty of murder 
In the second degree, found him guilty of murder in the first 

(S.) Samb— Whzit BxnsT Witkcssbs hat Emsaa Omnos upon Facts 
TsstmiD TO BT HnisEur and Otbkbs as to SAimr or Aocusni. 
The Jury upon the trial of this action, after deliberating far 
tome time, requested the trial Judge to have a certain part of his 
charge written out and to permit It to be taken by them into the 
Jury room. There was nothing erroneous in what was thus Bnl>> 
mitted, and the submission was made with the acquiescence ot 



connMl for defenduiL Eeld, that no error wu oommltted. or 
loBMl inJtuT Inflicted on tlie dofendut, by this coiin& 

.) Sua — SuBMisBroii or Par ow Csame to Jdkt nr WimirQ at Rfr 
Qtrcn or Jubt. 
A medical expert deaerlbed In detail all that waa aald and done 
upon an examination of defendant bj btmaelf and two other 
medical experta, and atated tliat. In hla opinion, Ixtaed on andi 
facta and all the evidence In tlie caae, tbe defendant «» use. 
The counsel for the People, recltlnc Tarlona alhved irrational acta 
of defendant, iwom to upon hla defenae. aalrad the witnesa. In 
■nbatance. whether auch taeta, aaanmlng them and all those teati- 
fled to b J wltneaa to be true, " were inconaiatant with the aanltr " 
of the defendant on the day he committed the crime charsed. 
Connael for defendant objected on the Krotmd that the Queatlon 
waa one for the Jurr to determine. The wltneM waa permitted 
to anawer. Betd, that the mllng waa proper. 

A conf«aalon which bad been made bj defendant to the chief of 
police and which had been reduced to writing and algned by de- 
fendant, waa Identified b? Buch ofScer and received In evidence. 
After defendant bad testified that he waa unable to remember 
whether he had made a confeaelon to the officer and that he waa 
also unable to tell whether he had made the statementa, or com- 
mitted the acts related In aald confeaalon, the oflicer waa per- 
mitted, upon rebuttal, to testify aa to defendant's admlaalona con- 
cemlns Improper transactlona mentioned in the confession. The 
court received the evidence "on the mental condition and also 
the defendant's veracity, that he had no recollecUon of what waa 
said and done at the Interview with the chief; " and. In his charge, 
the court lUBtmcted the Jnry that these transactions shonld not be 
made the basis of a conviction and that such evidence should 
be considered as bearing on defendant's credibility and upon Us 
mental condition at the time he was said to have made the atate- 
ment. Held, that the admiaalon of the evidence was not erroneous. 

Appeal from a judgment of the Supreme Court, rendered 
June 29, 190&, at a Trial Term for the county of Dutcheea, 
upon a verdict convicting the defendant of the crime of murder 
in the first degree. 

The facts, so far as material, are stated in the opinion. 



John F. Bingwood and Qeorge Wood for appellant. The 
judge virtually charged the jury that their verdict ranat be 
murder in the firat degree, or not guilty by reason of insanity. 
This waa error. (People V. Young, 96 App. Div. 38 ; People v. 
Granger, 187 N. Y. 72; People v. Sullivan, 173 N. Y. 123.) 
It waa error in the court, after the jury had retired and returned 
for instructions, to furnish them with the concluding sentencea 
of his charge in writing. (Code Cr. Fro. §§ 425, 426; 
Sckappner v. 8. A. B. B. Co., 55 Barb. 503 ; Mitchell v. Carter, 
14 Hon, 450 ; Manor v. People, 43 N. Y. 1 ; Cancemi v. People, 
18 N. Y. 128.) The hypothetical question answered by the 
three physicians on the part of the People as to the sanity of 
the defendant was incompetent in that they were permitted to 
take into account in answering the question the oral and 
physical examination of deefndant made previous to the trial 
and not in evidence or embraced in the question. ( Cobb V. U. 
E. etc., Co.. 191 N". Y. 481; Unh v. Sheldon, 136 N. Y. 1; 
People v. Eawldns. 109 N. Y. 317; People v. Sleight, 148 
N. Y. 617; People v. Nino, 149, N. T. 317; PeopU v. Rill, 
195 N. T. 16.) 

John E. Mack, District Attorney, for respondent The 
charge of the court that the jnry could find the defendant 
guilty of murder in the second degree was favorable to the 
defendant (People v. Oiblin, 115 N. Y. 196.) The giving 
to the jury of the concluding paragraph of the judge's charge 
at their request, which was not objected to by defendant, was 
not error. (People v. Priori, 164 N. Y. 459 ; People v. Dolan, 
186 N. Y. 4; People v. Gallagher, 75 App. Div. 39; People v. 
Johnson, 110 N. Y. 134; People v. Carnal, 2 N. Y. Cr. Rep. 
256; People v. Draper, 28 Hun, 1; People v. Flock, 8 N. Y. 
Cr. Rep. 43.) The hypothetical question propounded to the 
alienists was proper. (People v. Truck, 170 N. Y. 208.) The 
admission of the statement of the defendant as to other crimes 



vaa competent upon the qaestion of defendant's Banity. 
(People V. Pekarz, 185 N. T. 470.) 

HiscocK, J. The defendant baa been convicted of tbe crime 
of murder in tbe first degree because be killed one KlifF early 
in tbe morning of January 24, 1809, in tbe latter'e restaaranL 
Tbe theory of tbe prosecution in brief was and is tbat defend- 
ant and one Conrow, wbo were cixmployees on a railroad, 
formed a scheme to rob tbe deceased of several hundred dollars, 
which be was known to keep in bis bouse ; tbat in pursuance of 
this scheme on the morning in question tbe defendant went 
to Eliff's bouse, wherein was a store or saloon, and struck down 
Eliff with a piece of iron, causing injuries from which be soon 
died, beat bis wife into unconsciousness and then ransacked 
their sleeping room and obtained tbe desired money. On the 
trial, in addition to tbe general issue raised by defendant's plea 
of not guilty, the special issue of insanity was tried, although 
we are not able to find tbat it was pleaded. 

It does not seem necessary or desirable to enter into any 
extended review of the evidence in this case in announcing 
our conclusion that tbe judgment appealed from should be 
afiOrmed. Tbe testimony, consisting of defendant's confessions 
and of proof of independent facts corroborating those confes- 
sions at many important points, leaves no reasonable doubt 
whatever that tbe defendant committed tbe act with which he 
is cbai^d. In fact, neither on the trial nor on tbe argument 
of this appeal was it seriously contended that he did not kill 
Kliff at tbe time and place charged. The burden of his defense 
was tbat he was either afflicted with permanent mental irre- 
sponsibility or that as a result of drugs and intoxicating liquors 
be was temporarily rendered incapable of appreciating what 
be was doing. On these latter issues again, without recapitulat- 
ing tbe evidence, it may be stated tbat tbe jury were fully 



jostified in rejectiiig hiB claims and in holding bim respoDBible 
for what he did. 

This leaves us simplj to discoss briefly such legal questions 
arising in the course of the trial as are ui^ed on our attention 
by connsel and seem to require any consideration whatever. 
Scarcely any of these questions are presented by any proper ex- 
ception taken on the trial, bnt nevertheless we have given them 
the same examination as though proper exceptions had been 

It is claimed that the conrt by its instructions compelled 
the jnry to find the defendant either guilty of murder in 
the first or second degree or else to acquit him, and thus left 
them no option to find him guilty of an offense of a lesser 

The trial judge, with perfect accuracy and clearness, defined 
the ordinary cases of murder in the first and second decrees 
where the killing ia committed with a design to effect death 
and is or is not the resnlt of deliberation and premeditation, 
and also the crime of murder in the first degree when the 
killing is effected without design to cause death by a per* 
son engaged in the commission of or in an attempt to commit 
a ielony. He also with equal deamess and accuracy defined 
to the jnry the insanity or defect of reason which would excuse 
the defendant from l^al responsibility for killing Kliff, and 
also instructed them as to the effect which intoxication would 
have as bearing on the purpose, motive or inteot of defendant 
if he was foond to have committed the acts charged against him 
while in that condition. No exception was taken to the charge 
as made on these points, and no request was made for further 
instructions on any of them. As sa^eeted, however, counsel for 
the defendant now claims that by confioing his instmctions to 
those phases of the case which have been mentioned, the trial 
judge may have prevented the jury from finding the defendant 



gailt; of an offense of a lesaer degree, aocl thereby committed 

The ansver to this contention is twofold. The instmctions 
given to the jnry were the only logical onea au^eated by all 
of the evidence in the caae if the defendant killed Kliff, and 
while of conrse the jury had the legal right to convict the 
defendant of some leaser crime than was fixed on him by the 
verdict, hia coonael, if he thou^t that any snch view was per* 
mitted by the evidence, Bbonld have called the attention of the 
court to it and apecificaUy requested charges on the line now 
urged by him. As a matter of fact, the only request which 
he did make waa that the jury might find his client guilty of 
murder in the first or second degree. The second and quite 
conclusive answer, however, to this argument, is that the jury 
were specifically permitted to find the defendant guilty of 
murder in the second degree, and inasmuch as they did not 
avail themaelvea of this permiaaion but instead found him guilty 
of murder in the first degree, it is not to be apprehended that 
they would have found him guilty of some offense leas aerioua 
than murder in the second degree under the ordinary definitions 
applicable to this case even if they bad been specifically in- 
structed that they might so do. So far as concema the killing 
of a human being by one engaged in the commission of a 
felony, conviction in a lesser degree than murder in the first 
degree is not justified. (People v. Schleiman, 197 K. 7. 

further complaint is made because the trial judge on the 
request of the jury permitted part of his charge to be writ- 
ten out and to be taken by the jury with them into their 
room. This waa done in response to the specific request of 
the jury after they had been deliberating for some time and 
only after submiaeion of this written portion to counsel both 
for the People and the defendant and without any objection 
whatever on their part We are unable to see where any 



error was committed or I^al injury inflicted on the defend- 
ant by tbia course. The jury had received the general and 
complete instructions of the court and had retired for delibera- 
tion. Thereafter they returned to the court and requested not 
only additional instructions, but also that a certain portion of 
the charge should be written out so as to enable them to give 
more careful and complete consideration thereto. At the time 
tbey made this request it is to be assumed that their delibera- 
tions bad led them to select this specific portion of the charge 
as especially applicable to the views which were prevailing in 
their minds; and, personally, I see no reason why, as a matter 
of convenience, the court could not cause to be written out 
for them a portion of the charges, so as to secure greater accu- 
racy in their consideration and appreciation of it. But how- 
ever this may be as a general proposition, there was nothing 
erroneous in what was submitted to them, and this submission 
was made with the acquiescence of the counsel for the defend- 
ant, and, under those circumstances, certainly no error was 

Of the errors alleged to have been committed in the admis- 
sion of evidence, it is only necessary briefly to consider a very 

The complaint in regard to the admission of defendant's 
confessions as reduced to writing by the witness Graham is 
fully answered by the decision of this court in People v. 
Furlong (187 N. T. 198). 

One of the medical experts called by the People had described 
with great detail what was said and done on the occasion of an 
examination of the defendant by the witness and two other 
medical experts. Then, in answer to an hypothetical question 
which embodied various facta concerning the defendant which 
the evidence tended to establish, and also the above observations 
of the witness as detailed by him, he stated that in his opinion 
the defendant was sane on the date of the alleged murder. 



CoDnsel far the People then framed a qnestion embodying a 
description of various alleged irrational acts on the part of tlie 
defendant which hia evidence tended to establish, and asked, 
" Nov, doctor, mmitining the aforesaid to be true and taking 
into consideration the oral and physical examination of the 
defendant which 70Q have already testified to, are such assumed 
facts inconsistent with the sanity of the defendant on the 24th 
day of Janoary, 1909 1 " This was objected to on the ground, 
amongst others, that the qnestion presented was one for the jury. 
Of course, the qnestion was one for the jnry, but as it seems to 
ne the People had a right to call on this witness as on expert 
to state whether these acts, even if they occurred, were inc{m- 
sistent with or modified his opinion aa to the sanity of the 
defendant That was the real purpose and result of the ques- 
tion and answer as more folly appears by the continnaticoi of the 

One of the defendant's aUeged confessions was claimed to 
have been made to a chief of police. As part of the People'a 
case this witness was allowed to testify to what defendant 
had told him concerning the commission of the crime here 
involved. He testified that this confession had been reduced 
to writing and signed by the defendant, and without objecticnt, 
which raised the question now under diacussion, said written 
confession was received in evidence. Although his oral testi- 
mony did not cover that subject, the vrritten confession con- 
tained admissions that defendant prior to the commission of 
this crime had formed a scheme with the same Conrow already 
mentioned to rob a station agent, and had only been diverted 
from the consummation of this purpose by accident; that he 
had climbed into a house and stolen some money. After the 
defendant had ttkea the stand and testified that he was entirely 
unable to remember whether he had made confession to this 
witness, and also unable to tell whether he bad intended to rob 
^ atftticn tfent, and wh e th e r he had climbed into the house 



and stolen the maaej, and on rebattal, the chief of police was 
permitted over defendant's objections to tell of defendant's 
admissions to him concerning the two transactions last men- 
tioned. The court ovemiled the objections and took the 
evidenee " on the mental condition, and also the defendant's 
veracity, that he had no recollection of what was said and done 
at the interview with the Chief." Likewise, in his charge 
the court instructed the jury that these transactions could not 
in any way be made the basis of convicting him in this case, 
and that evidence of them was only to be considered as bearing 
on the question of defendant's credibility and in so far as they 
related to his mental condition at the time he was in jail and 
was said to have made the statements. 

While I am inclined to think that the district attorney in 
recalling the chief of police and bringing in this evidence of 
the alleged confession of other alleged misdeeds by the defend- 
ant bad another porpoee than that defined by the conrt and 
incurred unnecessary risks, I do not feel that under any view 
any such error was cominitted on the part of the court or any 
such injury done to the defendant as requires us to reverse the 
judgment. Possibly the evidoioe of everything which the 
defendant said on the occasion in question was permissible as 
bearing on his mental condition in view of his denial on the 
stand that he could remonber anything which occurred. More- 
over, as already has been pointed out, his written confession, 
covering substantially everything that was testified to by the 
chief of police when last recalled, was already in evidence with- 
out proper objection and presumably before the jury for con- 
sideration. But, furthermore and lastly, in view of the general 
merits of this case and of the evidence of defendant's prior 
misdeeds, we cannot feel that this evidence, even if technically 
objectionable, substantially infiuenced the jury in finding the 
verdict which was rendered against him. 



For theee reasons we think that the jadgment must be 

CuLUEs, Ch. J., Qbat, Wesiteb, "Wtllakd Bastlstt, Chasb 
and CoLXJK, JJ., concur. 

JadgmeBt of coDvictioD affirmed. 



Jan. 8. 1011. 


(iOO N. T. 9ie.) 

Uuuiu- Faotb BzAMntiD Aim Hild Bvwwicost io Svarta Vwuaai 

or Ooimonon — Bvmufai of Morm unt IimHT-^toTTHAi. to 

Gbaut a New Tbial Apfbovid. 

The rale Uat a penon Intends that which la th« natnral and 

nwn—MT conaeQuence of hla act accords with sound reason, 

and la applicable to capital cases. 

The facta proven upon the trial of a defendant Indicted fOr mnr- 
der examined, and held, that they are evidence of both motive and 
Intent; that the verdict convicting the defendant waa neither 
against the weight of evidence nor against law, and that there Is 
nothing to be found in the evidence or the procedure which would 
JoBtUr granting a new trial 

Afpsal from a jadgment of the Supreme Court, rendered 
March 28, 1910, at a Trial Term for the countj of Onondaga, 
upon a verdict convicting the defendant of the crime of murder 
in the first degree. 

The facts, so far as material, are stated in the opinion. 

Thomas Woods for appellant The question of defendant's 
guilt of the crime of murder in the first degree should not have 
been submitted to the jury, and the finding of the jury on this 
question ia against the evidence and againat the weight of 
evidence. (People v. Baffo. 180 N. Y. 434 ; People v. Barberi, 
149 N. Y. 256; People v. Mangano. 29 Hun, 269; Daly T. 
People, 32 Hun, 182.) 

Oeorge E. Bond, District Attorney, and George W, Standen 
for respondent The qnestions of premeditation, deliberation 
and intent were for the jury, and the evidence was ample mider 



the law upon whicli the verdict of the jury was baaed. (People 
V. Kieman, 101 N. Y. 618 ; People v. Majone, 91 N. Y. 211 ; 
People T. ConstantiM, 163 N. Y. 24 ; People v. Oovemale, 193 
N. Y. 581; People v. Ferraro, 161 N. Y. 365; People v. 
Schmidt, 168 N. Y. 575.) 

CoLLinr, J. The defendant on Sunday, January 30, 1910, 
caused the death of William F. Keene by shooting him with 
a revolver. At about six o'clock in the afternoon of that day, 
the defendant, said Keene and William F. Marsh were in the 
yard of the Wamer-Quinlan Company at Syracuse, N. Y. 
Defendant was in the employ of that company as a laborer, 
Keene as a teamster and watchman at the yard and Marsh as 
a foreman and watchman at the yard. The defendant asked 
Marsh, who as night watchman was about to take the place of 
Keene as day watchman, to let him watch that night and Marsh 
replied that the company did not allow any Italian to watch. 
A friendly conversation consisting of several sentences then 
ensued between defendant and Marsh in the presence of Keene, 
at the close of which defendant for a reason not apparent said 
to Marsh that he was a liar, prefixing the appellation with an 
oath. Thereupon Marsh ordered the defendant to leave the 
yard and, the defendant not complying or moving, took the 
defendant by the shoulder, and led him toward the gateway lead- 
ing from the yard into the street Aa they came near the gate- 
way the defendant protested against going out of the yard. 
Marsh then said to him, " I have a notion to smash your damned 
face for you," grasped him with both hands, shook him so that 
his cap fell off, told him to pick it up, which he did, and then 
said to him, " You get out of the yard, and stay out, and don't 
you come to work to-morrow." The defendant walked through 
and beyond the gateway into the street ten or fifteen feet 
Marsh thereupon walked back into the yard, and after passing 
through the distance of about thirty feet heard some one behind 



bim rnnning. He turned aboot and saw the defendant about 
fifteen feet from bim pointing a revolver et bia bead, and beard 
bim say, " Handa up, you sou of a bitch. Do I go to work to- 
morrow ? " Eeene, wbo was standing thirty feet or thereabouts 
from defendant, said to bim ae he was pointing the revolver at 
If arsb, " Put up your gun ; " whereupon defendant pointed the 
revolver towards Keene and said, " You bands up," and Keene 
obeyed. Marsh looked at defendant, said to him, " What in 
Hell ia the matter with you \ " walked to him, took him by the 
shoulder, defendant having put the pistol in his overcoat pocket, 
faced him toward the gateway and ordered him to go out. They 
walked tbrou^ the fifteen feet to the gateway, the defendant 
dropping slightly behind Marsh, and as tbey were in the gate- 
way defendant said, " I kill you, son of a bitch," and twice 
shot Marsh in the back. Keene said, " For why you kill Willie 
Marsh I " and defendant replying, " Yes and you, too," fired 
into Eeene the bullet which caused his death. The interval 
between the two shootings of Marsh was one second and between 
the last shooting of Marsh and the shooting of Keene was two 
seconds. The revolver used by defendant was, through no dis- 
closed reason or purpose, placed by him in bis pocket during 
the forenoon of that day. Until this occasion the relations be- 
tween the parties had been uniformly and thoroughly friendly. 
The foregoing statement is based upon the evidence in behalf 
of the People. Inasmuch as the jury adopted with ample 
justification such evidence, rather than that in behalf of the 
defendant, widely differing therefrom, it is not necessary to 
state the facts the latter tended to establish. 

The defendant's counsel earnestly and ably argues that tbe 
trial court erred in submitting to the jury tbe question whether 
tbe defendant was guilty of murder in the first degree, because 
the evidence did not tend to prove that the defendant shot Keene 
from a deliberate and premeditated design to effect his death. 
We cannot reach that conclusion. The fact that tbe defendant, 



when at the point of teo or fifteen feet without the gate, turned 
about and ran toward Mareb, taking the pistol from his pocket 
at some instant after Marsh at the gateway had turned his back 
upon him, is evidence that the defendant bad formed and held 
the design to use the pistol. His exclamation and question to 
Ifarsh and command to Keene are additional evidence that the 
design existed when thej were uttered. The conduct of Mareb 
and the direction of Eeene may have stayed the execution of the 
design, but the subsequent words and acta of the defendant are 
evidence that it included within its scope the shooting of Keene. 
The trial court could not determine, as a matter of law, that the 
mind of the defendant as he shot Keene did not bold the design 
to do the act, or the precise instant of time when the design, 
if existing, was formed or its extent or qiulity. The law is 
that a design which precedes the killing by a space of time 
suificient for some reflection and consideration upon the matter, 
for choice to kill or not to kill, and for the formation of a 
definite purpose to kill, may be a deliberate and premeditated 
design to kill. (People v. Qovemale, 193 N. Y. 581, 590.) 
Defendant's counsel contends further that the judgment lacks 
support essential to its legality, in that the evidence does not 
tend to prove any motive or intent on the part of defendant to 
kill Eeene. The facts constituting the transaction were evid- 
ence of both motive and intent. The rule that a person intends 
that which is the natural and necessary consequence of his act 
accords with sound reason, and is applicable to capital cases. 
The facts not only did not preclude, but were evidence of the 
existence in the mind of defendant of the intent to hill. They 
were evidence also of the existence of a motive springing from 
the harsh and insulting treatment accorded him by Marsh and 
witnessed, without interference at least, if not with approval, 
by Eeene, prompting his mind to shoot and kill Marsh and 
Eeene. Moreover, the killing was plainly proven to be willful, 
and the finding of a motive therefor was not essential. Under 



the evidence the trial court did not err in impoeing upon tb^ 
jury the duty of detemuning from the facta and circumatancea 
connected with the shooting the character of the act and the 
degree of crime which should be attached to it. An examina- 
tion of the record convinces us that the verdict waa neither 
against the weight of evidence nor against law; nor do we find 
anything in the evidence or in the procedure which would 
justify ua in holding that justice requires a new trial A care- 
ful consideration of each exception talen by defendant reveals 
no error. 
The judgment of conviction should be afSrmed. 

Culler, Ch. J., Geat, Wbbitsb, Hiscock and Chasi!> JJ.^ 
concur ; Willabd Babtlett, J., not voting. 

it of conviction afSrmed. 



Jul 10, leil. 


(200 N. T. S56.) 

(1.) Hvxi«B--BviiiKitCB— €ooD Chau^theb or AoouaiD. 

'When ft peraon, who ii charged with crime, has prerlonilr borne 
a Kood character, that bet ahonld In erery caaa he considered 
br the JuTT with the other evidence In determining whether he la 
galltr or InnocenL The improbahllltr of a peraon of anch 
character being gnlltr may of Itaelf be aufflclent In any caae 
to nUae a reaaonable doabt of gailt. When erldence of good 
character ralaea a reoaonabte donbt aa to the gnllt of a peraon ae- 
cnaed of crime, he b entitled to an acquittal although without 
ioch eTldenc« no donbt aa to bia gnllt wonid exlat It howerer. 
after considering the erldence ot good character with all of the 
other evidence In the case, the Inry bellere the defendant gnllty, 
tbey must so find notwithstanding bla good character. 

r Qimt TO BJitm BnoBiraB— 'Bnoiraocs R>- 

Where there la uncontradicted evidence of the prerloua good 
character of a defendant charged with the crime of murder, it is 
rererslble error for the court to refuae to charge a request stating, 
in substance, that. In the ezerclae of sound Judgment, the Jurr 
might give defendant the benefit ot the presumption ot Inno- 
cence that arises trom good character, no matter how ooncloalve 
the other evidence might be. 

There are clrcumatancea in which the declaratlona ot persons 
made in the presence of the accused are competent, but thej are 
regarded as dangerous and ahonld always be received with cau- 
tion and ahonld not be admitted onleas the evidence clearly brings 
them within the mle. Declarations or statements made In the 
presence of a party are not received as evidence in themselTcs 
but for the purpose of ascertaining the reply the party to be 
affected makes to them. They are only competent when the 



peraon affected hean and fullr comprelieiidB the eftect of tlie vorda 
■poken, and when he la at full llbertr to make answer thereto, 
and tben onlj under each circumatancea aa would Juatl^ the 
Inference ot aaaent or acquleacence aa to the truth of the atate- 
ment b7 hia remaining silent 

1(4.) Saux — Wher Bbborboub Receptioh or Aixzcm ADKiesionB or 
Accused not Cvkco bt SxraszQUKirr Oann SraiKnfo oitt such 

Where IncMnpetent or Immaterial tacts or statements, erron- 
eoualy receiTsd in erldence, are suhseqnentlr stricken from the 
record and the jury is directed by the court not to conalder snch 
evidence, anch error maf, in most cases, be deemed unlmimrtant 
or cured, and, hence, may be diaregarded upon appeal But If, 
In a capital case. In which the defendant's lite la inTolved, the 
eYidence, erroneously received, la calculated to affect the Jury in 
determining the KulH or Innocence of the defendant notwithstand- 
ing It waa, at leaat In form, removed from Its conelderatlon, this 
court has the power and It la Ita dnty to gire the defendant a 
new triaL 

It Is reversible error for the trial conrt to permit the district 
attorney, upon the cross-examination of a defendant indicted for 
murder with another, who had been tried and convicted, to quote 
In detail incriminating atatementa and aasertlons made fn the 
presence of defendant by auch accomplice, and then ask defendant 
whether auch statementa were made and whether he had refused 
to reply thereto, when it was not ahown that the defendant waa 
placed In a position where, by reaaon of his alienee, he should 
be charged with assent or acquiescence In the truth ot the atate- 
menta and chargea made In hia presence by the accomplice. Such 
error la not cared because the court, anbeequently and at the close 
of the teatlmony, granted a motion previously made by defendant'a 
counsel, and struck out snch testimony. 

Apfxal irotn. a jodgmeDt of the Supreme Court rendered 
July 6, 1909, at a Trial Term for the coaiity of Dutcbeaa 
npoD a verdict convicting the defendant of the crime of mnrder 
in the first degree. 

The facta, so far as material, are Btated in the opinion. 



James O. Meyer and Daniel A. Dugan for appellant The 
court erred in its charge to the jury as to the weight which 
should be given to the evidence of good character. (Bemsen 
V. People, 43 N. Y. 6; People v. Bonier, 179 N. T. 315; 
People V. Weias, 129 App. Div. 671; People v. Friedland, 
2 App. Div. 332; People v. Elliot, 163 N. T. 11; Cancemi 
v. People, 16 N. T. 601; People v. OilbeH, 199 N. Y. 10.) 
The conrt erred in allowing to be read the statements of 
Monat to Conrow in the jaiL (People v. Cory, 167 N. Y. 
332 ; Peoi^ V. Fielding. 158 N. Y. 642 ; People v. Fitzger- 
ald, 156 N. Y. 262; People v. McLaughlin, 160 N. Y. 386; 
People V. OreenwaU, 108 N. Y. 301; People v. Sharp, 107 
N. Y. 427.) 

7oAn £. Mack, District Attorney, for respondent. There 
was no error in the charge on the question of good character. 
(People V. Sweeney, 133 N. Y. 611; People v. Dippold, 30 
App. Div. 62; Cancemi v. People, 16 N. Y, 501; People v. 
Bonier, 179 N. Y. 315; People v. Pekarz, 185 N. Y. 470; 
People V. Elliot. 163 N. Y. 11 ; People v, BcnAam, 160 N. Y. 

Chase, J.: 

John Kliff and his wife for several years maintained a 
restaurant principally for railroad employees at Hopewell 
Junction, in the county of Dutchess. They accumulated 
several hundred dollars in cash which they retained in their 
personal possession at the restaurant Early Sunday morn- 
ing, January 24, 1907, Mr. KUff was struck upon hia head 
with some instrument which crushed his skull, from the effects 
of which he died that day. Mrs. KlifE vras also struck by 
the same or a similar instrument and her skull was crushed 
but she survived, although she was physically unable to be 
present at the trial. The money, amounting to about $625, 



was Stolen. One Napoleon Monat and the defendant were 
subsequently indicted for the homicide, and charged with 
murder in the first degree. The theory of the prosecntion is, 
that Monat and the defendant having ascertained that Kliff 
and his wife had in their possession several hundred dollars 
in cash, entered into an agreement to rob them, and that pur- 
suant to such agreement and carrying out the details thereof 
Monat took an iron bolt and entered the restaurant about 
four o'clock in the morning while the defendant watched out- 
side, and that Monat struck the blows which we have men- 
tioned and took the money, which he divided with the de- 
fendant in accordance with said agreement The defendant 
denies all participation or knowledge of the crime, but admits 
that several days thereafter he received a part of the money 
obtained by Monat from the Kliffs, and that after he had spent 
part of the money so received he was told by Monat about the 
robbery and the homicide. They were separately tried npon 
the indictment and each has been convicted of murder in the 
first degree. 

It is unnecessary to repeat the details of the crime and 
the evidence connecting the defendant therewith. We have 
carefully examined the record and are of the opinion that 
the verdict of the jury should not bet set aside as against the 

The defendant's counsel ui^es many objections to the judg- 
ment being affirmed. One of the reasons why he claims that 
the judgment should be reversed is for alleged errors of the 
court in charging the jury upon the subject of good character, 
and the consideration to be given to it by the jury in deter- 
mining the guilt or innocence of the defendant. 

The defendant produced several witnesses who testified to 
his good character and no witnesses were produced on behalf 
of the prosecution to contradict them. The court in the 
charge to the jury said: "Witnesses have testified on the 



part of the defendant to hia former good character, irit- 
neases who knew him six or seven or eight years ago, and 
other witnesses who have known him more recently. And 
evidence of previous good character ia always proper, and is 
always to be considered by the jury along with the other evi- 
dence in a criminal case, and where the qnestiona of fact are 
sharply contested and the case ia close, evidence of good char- 
acter may of itself create a reasonable donbt as to the defend- 
ant's guilt, so the courts have held. But where the evidence 
satisfactorily establishes the guilt of the defendant beyond a 
reasonable doubt, where yon are satisfied beyond a reasonable 
doubt that the crime has been made out, then the evidence of 
previous good character is of no avail to save a man from the 
consequences of his act. In other wordi^ a man cannot com- 
mit his first crime and then come into court and ask to be 
excused because up to that time he has always lived an exem- 
plary life. Evidence of good character is only to be consid- 
ered as it may bear upon the question of bis credibility and as 
it may tend to create a reasonable doubt in your minds on 
the question of his guilt." 

At the close of the charge counsel for the defendant said: 
" I except to that part of your honor's charge which says that 
where the evidence is close good character may be considered." 
The court replied to the counsel for the defendant as follows: 
" I did not say that. I said that it should be considered in 
any case, and that where the case was close it might of itself 
create a reasonable doubt." 

Alternate statements by counsel for the defendant and the 
court followed, of which the following is a copy: "Mr. 
Meyer: I ask yonr honor to charge further that there is tes- 
timony in this esse and if the jury believes the testimony of 
these witnesses upon the subject of the defendant's character 
that that is proof conclusive of the defendant's good character. 
The Court: I will leave it to the jury to say what eflfect the 



testimony of those witneaseB as to good character ie to have. 
I said to jou, gentlemen, and I eaj again, that evidence of 
good character is always to be considered in a criminal case 
along with the other evidence, but if the other evidence con- 
vinces you beyond a reasonable doubt of the gailt of the 
defendant, then the evidence of good character is of no avail. 
But if the case is close upon the evidence^ evidence of pre- 
vious good character may of itself create a reasonable doubt 
as to his guilt. Mr. Meyer: I except to your honor'a refusal 
to charge as requested and also to the chai^ as made. * * * 
Mr. Meyer: I ask the court to charge the jury that the jury 
may in exercise of sound judgment give the defendant the 
benefit of good character no matter how conclusive the other 
testimony may appear to be. The Court : You are to consider 
the evidence given by the witnesses as to his previous good 
character, giving to each such effect as you think under the 
circumstances it deserves or ought to have. [Exception to 
Mr. Meyer.] " 

When a person who is charged with crime has previously 
bom a good character, that fact should in every case be con- 
sidered by the jury with the other evidence in determining 
whether he is guilty or innocent. The improbability of a 
person of such character being guilty may of itself be suf- 
ficient in any case to raise a reasonable doubt of guilt. 
When evidence of good character raises a reasonable doubt as 
to the guilt of a person accused of crime, he is entitled to an 
acquittal although without such evidence no doubt as to his 
guilt would exist. If, however, after considering the evidence 
of good character with all of the other evidence in the case the 
jury believe the defendant guilty, they must so find notwith- 
standing his good character. 

This court has had occasion many times to state the rules 
applicable te the consideration by a jury of the good charac- 
ter of an accused in a criminal case, and a reference to some 



of the statements of this cotut in its reported opinions will be 
nude in place of a general diacoasion of tbe subject 

In Peofie t. Gilbert (199 N. T. 10, 26) the court with its 
approval of the statements made a snmmary from the chai^ 
of the court at the Trial Term aa follows: "The jury were 
instructed to consider the evidence of good character with all 
the other evidence in arriving at a conclosion; to wei^ tbe 
probabilities as to whether a person of such character would 
be guilt J of such an offoise; that good character alone mi^t 
create a reasonable doubt, and that if they had a reasonable 
doubt the defendant was entitled to an acquittaL They were 
told in effect that good character was not a specific defense, 
such as justification or excuse mi^t be, bnt, as it might creata 
a reasonable doubt, even if the evidence were otherwise con- 
clusive, the jury should consider it with alt tbe other evidence 
in order to decide whether the defendant was guilty beyond 
a reasonable doubt." 

In People v. Bonier (179 N. T. 315, 18 N. Y. Crim. 516) 
this court quoted from the opinions in three important prior 
cases in this court involving the subject of the previous good 
character of a person accused of crim^ namely, Caneemi v. 
People (16 N. T. 501, 506) ; Bemsen v. People (43 N. Y. 6) ; 
People V. Bllioii (163 N. Y. 11), and then said: " It is, there- 
fore, the law that evidence of good character may of itself 
create a reasonable doubt, when without it none would exist, 
and that upon the request of tbe accused the jury should be 
told that such evidence, in the exercise of their sound judg- 
ment, may be sufficient to warrant an acquittal, even if the 
rest of tbe evidence should otherwise appear conclusive." (p. 
321.) In this case the trial court in substance charged the 
jury that they were limited in the consideration of the previ- 
ous good character of an accused to a case where the questions 
of fact affecting his guilt or innocence were closely or nearly 
evenly balanced, and that good character should not create a 



reasonable donbt aa to the defendant's goilt unless otherwise 
the evidence was nearly balanced. 

The defendant was entitled to have the jury charged snb- 
stantiallj as requested bj his counsel, that in the exercise of 
sound judgment they might give the defendant the benefit of 
the presmnption of innocence that arises from good character, 
no matter how conclusive the other testimony appeared to be. 

The defendant's counsel also claims that the judgment 
should be reversed because of alleged errors conmiitted by the 
trial court in allowing the district attorney to detail, in ques- 
tions put to the defendant, certain statem^ts made by Monat 
in the defendant's presence while they were both in the county 
jail. The statements in part will appear more fully hereafter. 

The defendant was a witness in his own behalf. When he 
was being cross-examined he was asked in regard to an inter- 
view at the jail, at which Monat, the district attorney, a 
stenographer and one or more others were present with the 
defendant. The following is taken from the record of such 
cross-examination; "Q. Do you remember having a talk with 
Monat in the county jail in the presence of Mr. Toung and 
myself and stenographer! A. I didn't have a talk with him. 
I didn't say anything. Q. Do you remember Monat talking 
with you ? A I remember him talking to you people, yea. 
Q. Do yon remember him talking with you ? A. I was there 
when he was talking." 

The defendant's counsel objected to what Monat said as 
incompetent, irrelevant and illegal The objection was over- 
ruled and an exception was taken by the defendant's counsel 
and the court said : " It depends on what answers the defend- 
ant made if any ; and if he made none it will be for the jury 
to say whether his silence under the circumstances amounted 
to an acquiescence." The defendant's counsel then said: 
" That is what I object to." The objection was again over- 
ruled and an exception was taken by the defendant's counsel. 



The district attorne; then proceeded: "Q. Did Monat aay 
this to jou : ' Well, George, I understand here this morning 
that 7011 turned State's evidence against me^ so I thoogbt I 
woold request Mr. Mack to call jon in, and yon and I hare a 
little talk about this morder. Of coarse yoo know the posi- 
tion I'm in, and yon know the details as well as I do. Of 
course things is brongfat in now between yon and I, and these 
in the room here, for yon and I, to talk t<^ther. Xow, of 
cours^ if you want to talk to me, as I told Mr. Mack and Mr. 
Tonng and these people, why I would like to have jou tell 
me who made the certain remarks, or one or two things, and 
one of them was, that yon didn't know anything about the 
job until you got to New Haven and I gave you $250 to keep 
your mouth shut. Xow yon know me, George, and I know 
you, and yon know the position I'm in. I know what's going 
to become of me, but all I want is that you most take a little 
of this blame and not pat it all on me, because there is noth- 
ing can save me; I did the deed, and you was just aa deep in 
it as I was and you know everything that was done, from the 
beginning to the end. You know where yon and I went, 
and everything, and you can just as well go on and tell your 
share of what yon donc^ and everything. No matter what 
you tell any one else, it ain't going to save me. I committed 
the murder from our planning, you and I, and that settled 
it. Of course, when I heard you made the remark when I 
met yon at New Haven I gave you $250 at New Haven to 
keep your mouth shut you know that ain't right, don't yon t ' 
To which you answered: 'I've got nothing to say; I don't 
answer no questions. Where's my attorney ? ' la that right ? 
A. No, sir; it is not. Q. What is wrong! A. When I 
come in there didn't I say to you I would answer no questions 
whatever under instructions of my attorney. Q. Did yon 
answer Monat's question, ' I have nothing to say t ' A. I 
said I wouldn't answer no questions. Q. Didn't you say, ' I 



have nothing to 887?' ■^- No, air. Q. Did he ask jon this 
question, ' Now, C^rge, to bring on one thing and the other, 
when we first started, the firet thing was about the express- 
man ; that IB how we first started in about the money racket t ' 
Mr, Meyer: I object to bringing in a collateral matter. The 
Court; Repeat it. Q. Did Monat ask this question and did 
you make the following answer to it, ' Now, Qeorge, to bring 
on one thing and the other, when we first started the first 
thing was about the ezpressman ; that is how we first started 
in about the money racket ; we tried it on the expressman three 
nights running and never succeeded, by your not being where 
you were requested to be, and then Bock's came; of course, 
we got Baker's money without any fear of anything in Baker's 
place, and you got six dollars of it and I got $6.10 ; it was $12.10 
altogether. Am I right or am I wrong t And the ladder was 
taken away that night, and you was with me, and yon know 
where I put the ladder, and we took it down and put it back, and 
then we went to the caboose. I think we made one or two trips 
before the Eliff affair came up. You and I made the plan and 
planned it well, and you and I called it, and we had McGK>ugh 
call us, yon remember, that night I told them I would go out 
on the pusher at three o'clock, and if I didn't go out we told 
McGough to wake us anyway and we would take the roustabout, 
and McGough came down and waked us up, and we went down 
altogether and he went up in the new yard, and you and I went 
up about our business, and we went up and had the little talk 
about what you and I was going to do ; yon was to stay on the 
crossing and I was to go in and buy whatever I was to buy and 
hit Mr. KlifF, and no matter who came there you was to back me 
tip, and you didn't back me up, George, and after I went in 
you went over to the dispatcher'a office, and when I got through 
in there I whistled for you and you came out after I whistled 
three times, and I asked you who was knocking at the door, 
and yon said there was no one, you said you were there all 



the time, which you wasn't. You know bb well aa I do, Georije, 



on the advice of his counsel and had a right to refase to answer, 
and on the further ground that the question is asked for the 
purpose of getting before the jurj statements which cannot he 
gotten before them in any other way. The motion was denied 
and the defendant's counsel excepted. 

The district attorney then proceeded as follows: " Q. Was 
that question asked yon by Monat and did you make that an- 
swer! A. No, sir; I made no answer. By the Court: Q. 
Was that statement made by Monat in your presence and did 
you say in reply and in answer to him, ' I won't aay ( * A. No, 
sir. I told them when I went in I wouldn't answer no questions 
under the instruction of my counsel. Q. Did you make this 
statement that Mr. Mack has juat read! A. Yes, sir. By 
Mr. Mack: Q. Did Monat ask you this further question: 
' You said you had seen her counting it out, and I told you 
I didn't believe it, and we went up there at night and I watched 
and seen it. Yes, I saw her count the money, and be asked me 
if I saw her, and I said yes, and that night I came ahead of 
you on 17-4 out of Waterbury, and I met you there in Hope- 
well and that morning we came right up after he woke us up 
and I got the bolt out of the barrel and I was supposed to put 
them unconscious, which I didn't ; I had to strike him the second 
blow to put him down, and that killed him, and also I had to 
hit Mrs. Eliff, and I went in and got the money, and I also got 
the money in the little drawer; you said in the statement to me 
that there was two drawers, one on top and one near it, about 
half and half drawers as you would call them, and after we 
had got back to the caboose we counted it and divided it and 
everything. You made the plants, Grorge. You know as well 
as I do, if you wanted to talk you could talk.' » • * " 

The district attorney added to the last question from which 
we have quoted further statements of the same general char- 
acter as those quoted, which added statements equal in number 
and extent all of the alleged statements of Monat quoted above 



bnt tbe^ are omitted to avoid nnresBonablj extending this 

After the question to the defendant from which we have 
quoted in part had been eompleted the record is as follows: 
" Bj the court, Q. Did he make that statement t A. Yes. 
Q. Did you refuse to make any reply? A. Yes, sir." A 
motion was then made to strike from the record all of such 
questions and answers relating to Monat's statements, and the 
court said : " I will reserve my decision upon your motion until 
some time later during the triaL He certainly had a right to 
refuse to answer, and whether his silence under the circum- 
stances could be used against him or construed as consent or 
acquiescence I am not certain about; I will consider it and rule 

At the close of the testimony upon motion the court struck 
out the testimony, and said to the jury that the defendant's 
silence "cannot be regarded as an admission on his part, be- 
cause he was strictly within his legal rights when be said 
I won't say anything by advice of counsel Of course, if he 
bad been in a position where be ought to have admitted or 
denied, then bis silence would have acted against bim, but 
inasmuch as he was acting on the advice of counsel and refused 
to answer or speak, for that reason I do not think his silence 
can be used against him." 

The district attorney did not at any time show that the de- 
fendant was placed in a position where by reason of his silence 
he should be charged with assent to or acquiescence in the truth 
of the statements and charges made in bis presence by Monat. 
There are circumstances in which the declarations of persons 
made in the presence of an accused are competent, but they are 
regarded as dangerous and should always be received with 
caution and should not be admitted unless the evidence clearly 
brings them within the rule. Declarations or statements made 
in the presence of a party are not received as evidence in them- 



selves bat for the purpose of ascertaining the reply tlie partj to 
be affected makes to them. They are only competent when the 
person affected hears and fnlly comprehenda the effect of the 
words spoken, and when he is at full liberty to make answer 
thereto, and then only under such circumstances as would jus- 
tify the inference of assent or acquiescence as to the truth of the 
statement hy his remaining silent. (People v. Kennedy, 164 
N. T. 456 ; PeopU v. Smith, 172 N. T. 210 j People v. Caseone. 
185 N. T. 317; 20 N. Y. Crim. 175.) 

The rulings of the court in allowing the district attorney 
to make such statements and charges against the defendant in 
the form of questions were clearly erroneous and tended to 
injure the defendant seriously. The final ruling of the court 
was right and such reversal of the former ruling was made as 
clear and comprehensive as it was possible to make it. As a 
matter of law the statements and charges were no longer a 
part of the record. The previous erroneous ruliugs were 
theoretically cured and the statements and charges eliminated 
from the minds of the jury. Whether in practical result it 
is possible to remove from the minds of jurymen the effect of 
such detailed statements and charges when so deliberately re- 
ceived and repeated in their hearing may well be doubted. 
Where the judgment is death the jurisdiction of this court ia not 
limited to the review of questions of law. (Constitution, 
article 6, sec. 9.) If the dramatic recounting of the alleged 
acts and sayings of the defendant was calculated to affect the 
jury in determining the guilt or innocence of the defendant, 
notwithstanding that they were at least in form removed from 
its consideration, we have the power and it is our duty to give 
the defendsnt a new trial for that reason. 

In the trial of cases it frequently occurs that incompetent 
or immaterial facts or statements get before the jury inadvert- 
ently or without having been given that careful thought which 
they should have had. In such case even where the evidence 



ii KeeiT«d subject to objection mod exception, if it u snbse- 
qoentlj stricken from the record and the jaiy is directed by 
the court not to consider it, the error may in most cases be 
deemed onimportant, or cored, and it is generally disregarded 
npcoi appeal. 

In this case it appeared before any of the statements and 
chafes were repeated hy the district attorney that the defend- 
ant had intentitmally and deliberately refused to make any reply 
to them when they were made by Monat, and before any con- 
siderable part of the statements and chaises had been detailed 
on the trial it further appeared that the defendant had been 
advised by his counsel not to reply to statements made to him, 
and that at the time they were made by Monat he did not reply 
because he was obeying snch advice of his connsel; and yet 
the district attorney persisted in asking the questions and the 
court deliberately allowed him to proceed with great detail to 
recount before the jury Monat's statements and charges, not 
only as they related to the robbery and homicide of Eli£F, but 
as to other allied distinct and independent crimes. It is di£B- 
cult to conceive of anything more damaging to the defendant 
At the time these questions were asked of the defendant Monat 
had already been a witness for the prosecution and he had so 
far as appears narrated every material and competent fact 
within bis knowledge relating to the crime and connecting the 
defendant therewith. 

The statements and charges of Mooat must have been re- 
peated to the jury for the express purpose of influencing it in 
its deliberations upon the question of the defendant's guilt 

It 18 not always an easy thing for a juryman to eliminate 
from his memory the effect of damaging statements made in 
his presence, {Brooks v. Boeheater By. Co., 156 N. Y. 244; 
People V. Corey, 157 N. Y. 832; Peofle v. Fielding, 158 
N. Y. 542.) In this case where the defendant's life is in- 
Totved, we are unwilling to take the responsibility of saying 



that tlw atatoments and charges of Monat erroneously received, 
althongli stricken out, did not affect the result. 

It is unfortunate that incompetent testimony, even when 
peculiarly calculated to materially influence a jury, is so fre- 
quently urged upon its attention in criminal cases when alight 
care given to its consideration would not only reveal its incom- 
petency but the danger and wrong of persisting in its consid- 

For the reasons stated the judgment of conviction should be 
reversed and a new trial ordered. 

Cin.LBH, Ch. J., OsAT, Wbbnbb, WtLLABD Bastlbtt, Hib- 
oocK and Collin, JJ., cMicur. 

Judgment of conviction reversed, etc. 



Jan. 10, 1811. 


<ZW N. T. S85.) 

The detendant wu Indicted KOd convicted for tbe crime ot 
taUe reKlBtratlon In &ppearlns before tbe Inipectort of election 
for the fifteenth election district ot the thlrtr-flrst asHmbly dis- 
trict In the county of New Tork u a. roter In said district, he not 
being s qnallfied voter In sncta district, nor a dtlian of the 
United States or ot the State of Nev Tork, nor an Inhabitant at 
said election district tOr the last thirty days preceding the date ot 
the election. The prosecution vas allowed, over defendant's ob- 
jection and exception, to amend the Indictment by Inserting the 
thlrty-flfth assembly district In Ilea of the thirty-flmt assembly 
district wherever the words appeared therein. Held, that the 
amendment is not merely In the description of the offense, but 
in the Identity of the ottense. An amendment ot this character Is 
not permissible. 

,(2.) Saio — EvmBNOB-^THE Fact that DiRiniAirr was inrr Vaouif 
izBB OAK BB Pboted ohlt bt WirNissn PsoDuont a Ooux^~ 
NOT BT CiannCATza op Cubk or Codbt. 
Defendant claimed to have been natoralized at a city named 
by him and at a specified time. The conrt admitted In evidence 
certificates signed by clerks of various courts held in the city 
so named that they tailed to find any record of his naturallEatlon. 
field, error; that a defendant in a criminal prosecution Is en- 
titled to be confronted with the witnesses against him, and for 
this reason the fact that there was no record of defendant's 
naturalisation could be proved only by a witness personally pro- 
duced In court. 

People V. BromvHcX, 135 App. DlT. 67, 24 N. T. CrlnL 1B9, af- 

Appsax from an order of the Appellate Division of the 
Supreme Court in the first judicial department, entered De- 



cember 10, 1909, which reversed a judgment of the Court of 
General SesBioiiB of the Peace in the coimtj of New York 
rendered upon a verdict convicting the defendant of the crime 
of false registration and granted a new trial. 

The facts, so far as material, are stated in the opinion. 

Edward R, O'Maltey, Attomey-Oeneral (^Jaeob Frank of 
coonsel) , for appellant. The certificates of the courts of Con- 
necticut received in evidence on behalf of the People were com- 
petent. (Code Civ. Pro. § 921.) 

WiUiam E. Morris for respondent. 

CuiXBN, Cb, J. The defendant was indicted for the crime 
of false registration in appearing before the inspectors of elec- 
tion for the fifteenth election district of the thirty-first assembly 
district in the county of New York as a voter in said district, 
lie not being a qualified voter in such district, nor a citizen of 
the United States or of the state of New York, nor an in- 
habitant of said election district for the last thirty days pre- 
ceding the date of the election. On this indictment he was 
tried, convicted and sentenced. The Appellate Division re- 
versed the jndgm^it on question of law only, having ^camined 
the facts and found no error therein, and ordered a new trial 
From that determination the People have appealed to this 

The first error of which the defendant complains is that on 
the trial the prosecution was allowed, over his objection and 
exception, to amend the indictment by inserting the thirty- 
fifth assembly district in lien of the thirty-first assembly dis- 
trict wherever the words appeared therein. The learned judge 
who wrote for the majori^ of the Appellate Division was of 
opinion that the amendment was authorized under section 293 
of the Code of Criminal Procedure, which provides : " Upon 



tbe trial of an indictment, when a variance between the all^;a- 
tion therein and the proof, in respect to tim^ or in the name or 
description of any place, person or thing, shall appear, the 
court may, in its judgmoit if tbe defendant cannot be thereby 
prejudiced in his defense on the merits, direct tbe indictment 
to be amended, according to the proo^ on aoch terms as to the 
postponement of the trial, to be had before the same or another 
jury, as the court may deem reasonable." We entertain a 
different view. While tbe indictment contains but a sin^e 
count, the defendant is allied to have violated the law and 
been guilty of a crime for two different reasons: (1) Because 
he was neither a citizen of the United States nor of tbe state of 
New York. (2) Because he was not an inhabitant of the 
election district thirty days previous to the date of election. 
Under the first all^ation the defendant would be guilty of the 
crime, no matter in what election district he registered, and 
had the indictment contained this single allegation, the amend* 
ment would clearly have been justified under the provisions of 
the Code quoted. The statement of the election district would 
not be any element of the crime, but a mere specification of the 
particular place in which the crime was committed. Not so, 
however, as to the second allegation of the indictment There 
tbe crime charged is that the defendant registered at a particu- 
lar election district where he was not entitled to vote because 
he was not an inhabitant of that district. The particular dis- 
trict in which the registry was obtained was an essential ele- 
ment of tbe crime. The grand jury have not found that the 
defendant was not an inhabitant of the thirty-fifth district 
which was necessary to constitute a crime under tbe amend- 
ment of tbe indictment. In other words, the amendment is not 
merely in the description of tbe offense, but in the identity of 
the offense. An amendment of this character is not permissi- 
ble. (People V. Oeyer, 196 N. Y. 364.) 

The majority of the court below placed their decision on the 



admisBion by the trial court of improper evidence to establish 
that the defendant was not a citizen of the country and hence 
not entitled to vote anywhere. There was first placed in eW- 
dence his affidavit before the inspectors that he was bom in 
England and that he was naturalized at Bridgeport, Connect!- 
cut^ in 1887. Then over the objection and exception of the 
defendant there was admitted in evidence certificates signed 
by the clerks of the various courts held in Bridgeport that after 
an examination of the records from 1875 to date they failed to 
find any record of the naturalization of the defendant The 
certificates were signed by the clerks of the courts and their 
official seals attached. Some of the certificates were exempli- 
fied by the presiding judge of the courts, others not. It is 
sought to sustain the admission of these certificates under sec- 
tion 892 of the Code of Criminal Procedure, which provides : 
" The rules of evidence in civil cases are applicable also to 
criminal cases, except as otherwise provided in this Code," and 
section 921 of the Code of Civil Procedure which provides: 
" Where the officer, to whom the legal custody of a paper 
belongs, certifies, under his hand and official seal, that he has 
made diligent examination, in bis office, for the paper, and 
that it cannot be found, the certificate is presumptive evidence 
of the fact so certified, as if the officer personally testified to 
the same." The Appellate Division thought it doubtful if sec- 
tion 921 applied to other than officers within this state, because 
there is no provision made for the authentication of the signa- 
ture of the clerk and the seal of the court, as required under the 
act of Congress for the exemplification of records of one state 
to be used in another. We think there is a good deal of force 
in that doubt. The court based its decision, however, on the 
ground that the defendant was entitled to be confronted with 
the witnesses against him, and for this reason the fact that 
there was no record of defendant's naturalization could be 
proved only by a witness personally produced in court We 



tfaiiik that in this view the conrt below was correct It is 
doubtless true that the first ten amendments to the Federal 
Constitution are not restraints on the powers of the state^ and 
also that our Bill of Rights which provides that, " In all crim- 
inal proBecutiona the accused • * * is entitled * • • 
to be confronted with the witnesses against him," is but a 
statute and subject to l^islative amendment, except so far as 
certain of its provisions appear in the first article of our Con- 
stitution. We think it entirely clear, however, that there is no 
legislation modifying or repealing the provisions quoted from 
the Bill of Rif^ts. True, by section 392 of the Code of Crim- 
inal Procedare, above referred to, rules of evidence in criminal 
cases are the same as in civil cases, " except as otherwise pro- 
vided in this Code," but section 8 of the same Code provides 
that a defendant is entitled " to be confronted with the wit- 
nesses against him in the presence of the court," with a single 
exception not applicable to the case before us. The ri^t to be 
confronted with the adverse witnesses in conrt is plainly a 
case " otherwise provided for," and, therefore^ comes within 
the express exception of section 392. It may be also said that 
though the Bill of Rights is but a statute, it is a statute of great 
antiquity in this state, having been enacted first in 1787, and 
having remained on the statute books ever since, despite the 
perpetual revision and codification our laws undergo. It now 
appears in article 2 of the Civil Ri^ts Law. Such a statute 
should be deemed amended by other provisions of law only 
when the legislature has expressed that intention in clear terms. 
The order of the Appellate Division should be affirmed. 

Gbat, WEBrnEB, Wiixasd Baxtlstt, Hisoock, Chase and 
CottJH, JJ., concur. 



Jftit. 24, 1811. 


(200 N. T. 44S.) 

<1.) Afpklutk jDXiBDicnoir OF Codbtb PmxtT Btaivjokt, 

Th« Bppellat« jnrUdlctlon of Uie courta of tills state In criminal 
caKi is parelj Htatutoir; and sncb jurisdiction can never be 
assnmed, unless a statute can be found which expresslj sanctions 
Its exercise. 

(2.) Sahb— Whkh iro Atpeai. Ltn Fbom ut Obdeb Diaicnifa a Rk- 
auBUBSioir to a Qruid Jdbt of a Cbikihai. Chabox Arm 


The Court of Oeneral Bessions of the Peace in New Tork cltr 
directed that a charge for Tlolatlon of the criminal law be sub- 
mitted to the grand jury. The charge had alreadr been the 
snbject of an Indictment against the defendants to which they 
had succeesfully demurred, and no direction was then made that 
the case be resubmitted. The order for reAuhmlsalon was made 
more than a year after the determination of the demurrer and hj 
another Judge when another Indictment was found. Held, that 
no appeal lies from the order directing such submission. 

It teema, defendants can raise the question of the vallditr of 
tlie order, either hj treating the allowance of the demurrer as 
equivalent to an acquittal and interpose that plea to the second 
indictment or. In ease of conTletlon thereon, move In arrcat of 

People T. Zerillo, 110 App. DIt. 902, appeal dismissed. 

lionoif to dismies the appeal of the defendanta from so 
much id an order of the Appellate Division of the Supreme 
Court in the first judicial department, entered October 28, 
1910, as diamigsed their appeal from an order of the Court of 



General SeBeJona, eotered on the 33d day of Axigaet, 1909, 
which directed that the attomey^Deral submit to the grand 
jury of the county of New York a violation of sobdivision 12 
of section 41 of the Penal Code alleged to have been committed 
bj the defendants. 

The facts, so far as material, are stated in the opinion. 

Florence J. Sullivan for appellants. In sustaining the de- 
murrer to the first indictment, Hie judgment became a bar to 
another prosecution, as no direction was giren therein by the 
court sustaining the demurrer for leave to resubmit the case 
to the same or the next grand jury. (Code Crim. Pro, g 327; 
People V. Clements, 5 N, Y. Cr. Rep. 297 ; 22 Cyc. of Law & 
Pro. 433; People v. Krivitsky, 60 App. Dir. 311; 168 N. Y. 
187; People v. Martin, 77 App. Div. 406.) The appellants' 
appeal to the Court of Appeals is a matter of ri^t (People 
V. Priori, 163 N. Y. 99; People v. Conepi, 181 N. Y. 402; 
Code Crim. Pro. § 519; People v. Helmer, 154 N. T. 613; 
People ex rel. Brestlin v. Lawrence, 107 N. Y. 609 ; People v. 
Drayton, 168 N. Y. 10.) 

Edward R. O'Malley, Attomey-Oeneral (Lowen Edward 
Ginn of counsel), for respondent The order directing resub- 
mission was made in the proper and lawful exercise of the 
power and discretion of the Court of General Sessions ; resub- 
mission, made pursuant to its mandate, and the indictments 
thus found were and are valid. (Code Crim. Pro. % 327; 
People V. Martin, 77 App. Div. 396 ; People v. Rosenthal, 197 
N. Y. 394, 401; People v. Clements, 5 N. Y. Cr. Kep. 296.) 

WiiXABD Babtuitt, J. Od August 23rd, 1909, the Court 
of G^eral Sessions of the Peace in and for the county of New 
York made an order directing that a charge against the de- 
fendants for violating subdivision 12 of section 41 of the Penal 
Code should be submitted to the grand jury. The papers upon 



which this order was made showed that this charge had already 
been the subject of an indictment against the defendants to 
which they bad successfully demurred. From the order direct- 
ing a resubmission of the charge the defendants appealed to the 
Appellate Division where their appeal was dismissed. " No 
appeal lies from such an order in a criminal case," said that 
court, " but the question must be presented on the appeal from 
the final judgment." (Citing Matter of Montgomery, 126 
App. Div. T2; 193 N. Y. 659.) The defendants have now ap- 
pealed to this court from the order of dismissal by the Appel- 
late Division ; and here, also, the special deputy attorney-gen- 
eral moves to dismiss their appeaL 

It is necessary to state briefly the history of the case. The 
defendants were indicted on April 1^ 1908, for the crime of 
making a false statement of the result of the canvass of the 
ballots cast at an election while they were inspectors of election. 
They interposed a demurrer to the indictment which was al- 
lowed by Judge Cbaii* and judgment was duly entered in their 
favor on June 11, 1908. At that time no direction was given 
by the court that the case should be resubmitted to the same or 
another grand jury. More than a year later, however, upon 
August 23, 1909, an order was mad* at a term of the Court of 
General Sessiona held by Judge Robalset, directing that the 
attorney-general submit to the grand jury of the county of New 
York the violation of the Penal Code alleged to have been com- 
mitted by the defendants herein. Under that order another 
indictment has been found which the defendants hare unsuc* 
cessfulty moved to dismiss. The purpose of the defendants upon 
the present appeal is to review the jurisdiction of the Court of 
General Sessions to make an order directing the resubmission 
of the charge to another grand jury under the particular cir- 
cumstances of this case — that is to say, months after the deci- 
sion upon the demurrer and when a different judge was presid- 
ing over the court 





muiT Divisiozr— SBCxnrD dzstbiot, 



and who shall either offer or undertake, hy any means or 
method, to diagnose, treat, operate or prescribe for any human 
disease^ P^in, injury, deformity or physical condition." 

The exception in the Health Law is stated in section 173 of 
the same law as follows: 

" This article shall not he construed to affect * * * 
the practice of the religious tenets of any church." 

It is alleged in the information and the testimony estab- 
lishes that the defendant did hold himself ont to and did actu- 
ally treat Mrs. Isabella Goodwin, a police matron, and Mrs. 
Frances Benzecry and the latter's infant daughter Lucille, for 
the ailments and diseases from which they daimed they 8uf> 
fered. His treatment consisted substantially in sitting oppo- 
site each patient for several minutes in mental prayer and in 
reading to Mrs. Benzecry certain passages from a book of Mary 
Baker G. Eddy entitled " Science and Health." The defend- 
ant admits that the treatment given by him was the recital of 
prayers, and asserts that in this treatment he was practicing 
the religious tenets of the Church of Christ, Scientists, of which 
he was a believer and known as a " healer " or " practitioner." 
From his testimony it appears that his authority to " treat " 
was derived from the publication of an advertisement in the 
Christian Science Journal, a publication of this church. This 
advertisement was paid for at advertising rates, and the appli- 
cation to insert the " card " or advertisement was passed upon 
by the " publication committee " of this church, which made, 
it is claimed, a personal investigation as to defendant's life and 
his moral fitness, and only after it received three signed state- 
ments of persons who had been cured by him. In the language 
of the witness, Virgil O. Strickler, first reader of the Christian 
Science Church, " the publishers of the Christian Science Jour- 
nal publish the cards of practitioners in the Journal whom the 
publishers of the Journal have investigated and consider worthy 
to have their names printed in the Journal. There are many 



other Cbristiau Science practitionen whoee names are not in- 
cluded in the Journal, but those included in the Journal are 
those who have been investigated by the proper officials of the 
organization, and, in a sense, they are looked npon as being 
better practitioners." Furthermore, the defendant testified 
that he practiced before the publication of this advertisement. 
" Practitioner " Cole maintained hia offices in an (Mee build- 
ing at No. 225 Fifth avenue, New York City, and then the 
patrons or clients who visited him were treated for their alleged 
physical ills and to alleviate suffering by methods known as 
Christian Science treatment, and this for pay, the chaises 
therefor being fixed, for each visit. Mrs, Goodwin narrates in 
detail her visit to the defendant's place of business on Janu- 
ary 7, 1911, and states that upon entering his private office the 
defendant inquired, " What is the matter with you t " and that 
she replied that she was suffering from palpitation of the heart 
and bladder trouble, and whereupon " he told me to sit down 
in a chair." The defendant then seated himself opposite her, 
a few feet away, and held his hand to his face for about fifteen 
minutes. Complainant further testified that Mr. Cole said to 
her, " I think you will be benefited at once : you seem to be re- 
sponding to treatment," and she paid his charge of $2 when the 
defendant told her to call again. She admits that the defend- 
ant did not perform any operation, nor did he make any ex- 
amination or give any prescription. Mrs. Benzecry testified 
that on her first visit to the defendant's office she inquired if 
he was a doctor and that he said he was a Christian Science 
healer, and when he inquired what was the trouble she said 
that she suffered in the eyes, and Mr. Cole said " I must keep 
my glasses off." The defendant told her in the course of the 
visit that he could cure locomotor ataxia by prayer. She asked 
him about a pain in her back, and he made reply that it is a 
disease, but couldn't tell what kind of sickness it was. She dis- 
cussed the system of treatment generally and paid defendant 



luB lee charged for the treatment on the occasion of each of 
several visits. 

The learned counsel for the defendant has waived the qaes- 
tion Hs to whether or not these facts constitute " treatment " 
within the meaning of the " practice of medicine " as the same 
is defined in the statute, and relies entirely upon the following 
language of section 173 of the law, which reads: " This article 
shall not be construed to affect • * * the practice of the 
religious tenets of any church." 

When the constitution of 1894 was adopted, section 3, Arti- 
cle I of the preceding constitution of 1846, without change, 
was continued in full force, providing as follows : " The free 
esercise and enjoyment of religious profession and worship, 
without discrimination or preference, shall forever be allowed 
in this State to all mankind ; and no person shall be rendered 
incompetent to be a witness on account of his opinions on mat- 
ters of religious belief, but the liberty of eonscienee hereby $e- 
eured shall not be so construed as to excuse acts of licentiousness 
or justify practices inconsistent with the peace or safety of this 
State." (N. T. Const., Art. I, sec. 3). 

Thus the establishment of freedom of worship and religious 
liberty was guaranteed. 

I mnst hold that the defendant was given no greater liberties 
by the exception provided in the Public Health Law than he 
enjoyed under the State and Federal Constitutions. It is un- 
disputed that religious liberty and the freedom of worship were 
among the defendant's inalienable rights even before the enact- 
ment of that statute law. The establishment and the teaching 
of the religion in which the defendant is an ardent believer 
contravened no law. Prohibiting the free exercise thereof 
would clearly be unconstitutional, but the freedom of religion 
cannot be extended to prevent the punishment of crime (Davis 
V. Beacon, 133 N. S. 833). Story in his work on the Constitu- 
tion (5th ed.) says at section 1870 that the whole power over 



the subject of religion is left exclu8ivel7 to the State gorem- 
ments, to be acted upon accordiag to tbeir own sense of justice. 
Tbe organic basic law of out State must therefore govern. The 
Public Health Law (eupra) doea not infringe upon the consti- 
tution. It regulates the practice of medicine, and thereby the 
State protects the health of its citlzena, as it has a right to do 
80, acting, as it must, according to its own sense of justice 
(Dent r. West Vii^nia, 129 U. S. 114; People v. Mulford, 
135 N. Y. Supp., App. Div., 680; s. o., 140 App. Div., 716). 
Tbe defendant now invokes his constitutional prerogative of 
freedom of worship and religious liberty. He pleads exemption 
from tbe operation of tbe Public Health Law under the circum- 
stances of this caee in that he claims to be engaged in the ob- 
servance of certain religious tenets of the Christian Science 

I am of the opinion that the practice of the treatment of sick- 
ness and disease by inaudible prayer as established by the 
evidence in this case violates the law of this State. The only 
theory on which the defendant can claim any right to practice 
as a " healer " of diseases and sickness is that the reservation 
stated in the Public Health Law of this State to the effect that 
the " article shall not be construed to affect * * * the 
practice of religiotia tenets of any church," excludes him from 
the operation of the definition of the " practice of medicine." 
It is, of course, true that the State Constitution grants to every 
person freedom of conscience in matters of religion; but, on 
the other hand, it specifically provides that " the liberty of con- 
science hereby secured thall not be construed as to excuse acts 
of licentiousness or justify practices inconsistent xpith the peace 
or safety of this State." A composite definition of the words 
used in tbe clause of the Public Health Law under consider^ 
ation affecting the practice and observance of religions tenets 
may be stated as the act, influence or purpose of carrying out 
the regular pursuit of some profession concerned with religi<m 



in the matter of opinion, principle, dogma it doctrine which a 
person, school or sect holds or maintains as true. Thtis it is to 
be seen that the right of freedom of religious belief and worship 
is purely personal and individual (not the subject of govern* 
mental review) and that no one shall be affected in the exercise 
of his belief and faith in the Divine Being so long as the be- 
liefs of the church and the exercise thereof do not jeopardize 
othera and non-believers. The field of personal opinion is 
inviolable. The church and the State must be independent. 
The inviolability of the freedom of religions profession and 
worship must, however, in no wise impair or menace the safety 
of the State or the security of its people in their health. 

The public health and the treatment of disease are matters 
oi great concern to all States and the subject of proper public 
regulation in the exercise of their police powers. In the mat* 
ter of the First Church of Christ Scientist (6 Pa. Dist Rep., 
745) an application was made for a charter of a proposed cor- 
poration " to preach the Gospel according to the doctrines of 
Christ, as foond in the Bible and stated in the tenets of Chris- 
tian Science." One of the tenets stated is : " We acknowledge 
the way of salvation demonstrated by Jesus to be the power of 
truth over all error, sin, tichness and death, and the resurrec- 
tion of human faith and understanding to seize the great possi- 
bilities and living energies of divine life." One of the rules of 
these tenets prescribed: "To beccmie a member of the First 
Church of Christ Scientist in Philadelphia, Pa., the applicant 
must be a believer in the doctrines of Christian Science, ac- 
cording to the teaching contained in the book * Science and 
Health' * * * The Bible and the above named book, 
with other books by the same author, mast be his only text books 
for self-instmction in Christian Science and for practicing 
metaphysical healing." Presiding Judge Pennypacker, snbse- 
quently Qovemor of the Commonwealth of Pennsylvania, in 
refusing the charter, wrote (p. 746). " If the purpose of the 



proposed corporation were only to mculcate a creed or to pro- 
mulgate a form of worship no question could arise, becanse 
nnder the Constitution of Pennsjlvania private belief is beyond 
public control, and there can be no interference with the right 
of conscience. But the most cursory examination of the 
• * * testimony and of the tenets, and of the book of Mrs. 
Eddy, which is placed upon a level with the Bible in the teach- 
ings of this church, shows that there is a Christian faith and 
a science, not only a belief but a purpose to accomplit^ practi- 
cal results; not only an attempt to educate the community to 
the importance of the rerognition of certain ethical principles, 
but an efFort to establish a prescribed method of practicing the 
art of healing the diseases of the body. • • • The treat- 
ment extends to the most serious and fatal diseases — rheuma- 
tism, ecorfula, cancer, small-poz and consumption." The court 
in that case quotes from page 422 of Hrs. Eddy's book, viz: 
" If the case to be mentally treated is consumption, take up 
the leading points iocluded according to belief in that disease. 
Show that it is not inherited, that inflammation, tnberclea, 
hemorrhage and decomposition are beliefs. » • • Then 
these ills will disappear. If the lungs are disappearing, this is 
but one of the beliefs of mortal mind." Ko knowledge, it 
seems, was required of anatomy, physiology, pathology or hy- 
giene ; the whole system was based on the theory that all dis- 
ease, even those of a contagious character, were mere beliefs 
and not real facta. On appeal the Supreme Court of Pennsyl- 
vania reviewed the whole case and held that such a e^stem is 
opposed to the general policy of the law of that State relative 
to the existence and treatment of disease (sec. 20S, Pa. St. 
Kep. 543). Mr. Justice Potter, for the Appellate Court, writ- 
ing in the case on page 550 said: " We are not to consider the 
matter from either a theological or metaphysical standpoint, 
but only in its practical aspects. It ie not a question as to how 
far prayer for tli6 recovery of the sick may be efSeadotis. Tha 



common faith of mankiad rdiea not only upon prayer, bat 
upon the ose of means which knowledge and experience have 
shown to be efficient. And when the resnlts of this knowledge 
and experience hare been crystallized into legislative enact- 
ments, dedarative of what the good of the community requires 
in the treatment of disease and of the qualifications of those 
who puHidy deal with disease, anything in opposition thereto 
may fairly be taken as injurious to the community. Our laws 
recognize disease as a grim reality to be met and grappled with 
as such. To secure the safety and protect the health of the 
pablic from the acts of incompetent persons the law prescribes 
the qualifications of those who shall be allowed to attempt the 
cure or healing of disease. It is not for the purpose of com- 
piling the use of any particular remedies or of any remedies 
at alL It is only designed to secure competent service for those 
who desire to obtain medical attendance. In certain diseases 
the individual affected may be the only one to suffer for lack of 
proper attention, but in other types of a contagious or infec- 
tious nature they may be such as to endanger the whole com- 
munity, and here it is the policy of the law to assume control 
and require the use of the most effective known means to over- 
come and stamp out disease which otherwise would become 
epidemic In such cases failure to treat or an attempt to treat 
by those not possessing the lawful qualifications is equally 
violative of the policy of the law. It may be said that the wis- 
dom or the folly of depending upon the power of inaudible 
prayer alon^ in the cure of disease, is for the parties who in- 
voke such a remedy. But this is not wholly true, ' For none 
of Ds liveth to himself, and no man dietb to himself and the 
consequence of leaving disease run unchecked in the community 
is so serious that sound pablic policy forbids it Neither the 
law nor reason has any objection to the offering of prayer for 
the recovery of the sick. But in many cases both law and com- 
mon sense require the use of other means which have been given 



to US for tbe healiog of sickneas and tlie cure of disease. There 



or professed to heal, or prescribed for or otherwise treated any 
physical or mental ailment of another. 

The Nebraska case was followed by the Ohio Supreme Court 
in State v. Marble (sapra). There the defendant was prose- 
cuted for unlawful practice of medicine. His plea in defense 
was substantially that prescribing for a fee Christian Science 
treatment for cure of bodily ailment ia not practicing of medi- 
cine within the meaning of the statute; that Christian Science 
is a religiona belief; and that be treated in obedience to a re- 
ligious and conscientious duty. The court held that the prac- 
tice of medicine is subject to such reasonable regulations or 
conditions as the State in the exercise of the police power may 
prescribe (France v. The State, 57 Ohio St. 1; The State of 
Ohio T. Gardner, 58 Ohio St 599). The court in the Uarble 
case, by Mr. Justice Summers, at page 31, wrote: 

" But if the inhibition of the statute tends to the pnbHc wel- 
fare and is not obnoxious on other grounds it is not within the 
provision of the bill of rights. In Bloom v. Richards (2 Ohio 
St 387, 392). Thurman, J., says: ' Acts evil in their nature 
or dangerous to the public welfare may be forbidden and pun- 
ished, though sanctioned by one religion and prohibited by 
another; but this creates no preference whatever, for they 
would be equally forbidden and punished if all religions per- 
mitted them. Thus, no plea of his religion should shield a 
murderer, ravisher or bigamist, for conmiunity would be at 
the mercy of superstition if such crimes as these could be com- 
mitted with impunity because sanctioned by some religious de* 
lusion.' " At page 23 the opinion continues and quotes as fol- 
lows : " The power of the State to provide for the general wel- 
fare of its people authorizes it to prescribe all such regulations 
as in its judgment will secure or tend to secure them against 
the consequences of ignorance and incapacity as well as decep- 
tion and fraud. Aa one of the means to this end it has been the 
practice of different States from time immemorial to exact in 



many porsnita a certaia degree of ekil] and leaming upon 
which the community may confidently rely. • * • ' " 
Disposing of the defendant's contention that the statute inter- 
fered with the defendant's right to worship Qod alone accord- 
ing to the dictates of his conscience, the learned jnatice said 
(p. 36) : " But it is said the offering of prayer to God for the 
recovery of the sick is not against public health or pnbtic morals 
or public safety or public welfare. Admitted. But is that a 
correct statement of the case t If the defendant prayed for the 
recovery of Hehl that was the treatment be gave him for the 
care of bis rheumatism and for which Hehl paid him. He was 
practicing healing or caring diseases. To assume that legis- 
lation may be directed only against administering of drugs or 
the use of the knife is to take a too narrow view. The subject 
of the legislation ie not medicine and snrgery. It is the public 
health or the practice of healing. The State mi^t make it an 
offense^ as has been done in "New York (People v. Pierson, 176 
X. Y. 201), for anyone to omit to furnish medical attendance 
to those dependent upon him, and at the same time leave him at 
liberty to die in any manner he may choose. But this is not all. 
While the State may not deem it wise to go to the extent of 
requiring the individual to avail himself of the services of a 
physician, yet it may not wish to hasten his death and so to 
transfer to itself the burden of snpporting those dependent 
upon him by making it possible for him to employ an empiric. 
Again, where there ia an infectious or contagious disease, the 
public welfare may be vitally affected by a failure promptly to 
recognize it, and so the State is interested in permitting to 
practicing the art of healing only those possessing recognized 
qualifications. So that regarding disease rather than the treat- 
ment of it as the subject of the legislation, it is not necessary 
that the statute be preventive of particular practice, but it may 
make the right to undertake the treatment of disease dependent 
upon the possession of reasonable qualifications." 



In the case of People v. PiersoQ, cited with approval in the 
opinion of the learned Ohio coart, the Court of Appeals of thta 
State has decided that it was criminal to withhold " medical 
attendance " from a eick child and to treat the same solely ac- 
cording to the religions beliefs of the father of the child. In 
this case the defendant Pierson was indicted for manslaughter 
for neglecting to furnish medical attendance to his child. The 
court held that the medical attendance mentioned in the statute 
was the medical attendance of a r^;ularly licensed practiti<aier. 
Discussing the contention as to the constitutionality of the pro- 
vision of the Penal Code requiring a parent to provide " medi- 
cal attendance," the learned court, in People v. Pierson (supra, 
at page 210), through Mr. Justice Haight, said: "The re- 
maining question which we deem it necessary to consider is the 
claim that the provisions of the Code are violative of the pro- 
vision of the Constitution (Article I, section 3), which pro- 
vides that " the free exercise and worship^ without discrim- 
ination or preference, shall forever be allowed in this State to 
all mankind, and no person shell be rendered incompetent to 
be a witness on account of his opinions on matters of religions 
belief; but the liberty of conscience hereby secured shall not 
be so construed as to excuse acts of licentiousness or justify prac- 
tices inconsistent with the peace or safety of this State.' The 
peace and safety of the State involves the protection of the 
lives and health of its children, as well as the obedience to its 
laws. Full and free enjoyment of religious profession and woi^ 
ship is guaranteed, but acts which are not worship are not. A 
person cannot, under the guise of religions belief, practice 
polygamy and still be protected from our statutes constituting 
the crime of bigamy. « * • \Pe are aware that there are 
people who believe that the divine power may be invoked to 
heal the sick, and that faith is all that is required. There are 
others who believe that the Creator has supplied the earth, 
nature's storehouse, with everything that man may want for 



his rapport and nuuntenance, inclading the restoration and 
preflervBtion of his health, and that he ie left to work out his 
own salvation tmder fixed natnral laws. There are still others 
who believe that Christianity and science go hand in hand, both 
proceeding from the Creator; that science is but the agent of 
the Almighty, tbroo^ which He accomplishes results, and that 
both science and divine power may be invoked together to re- 
store diseased and suffering humanity. But, sitting as a court 
of law for the purpose of construing and determining the mean- 
ing of statutes, we have nothing to do with these variances in 
religious beliefs, and have no power to determine which is cor- 
rect. We place no limitation upon the power of the mind over 
the body, the power of faith to dispel disease, or the power of 
the Supreme Being to heal the sick. We merely dedare the 
law as given us by the Legislattu«." 

In People v. Mylod (20 R. I. 632) the court held that the 
faith healing as taught by Christian Science is not a practice 
of medicine. The defendant was the President and First 
Header or Pastor of the Providence Church of Christy Scientist 
He had treated one witness for malaria and one for grip. He 
testified, in his own behalf, that he did not attempt to cure the 
witnesses by any means or power of his own; that he assured 
them that it is Ood alone who heals, acting through the human 
mind, and that all he did was to engage in silent prayer for 
them. The court cited the Nebraska case (supra), but did not 
follow it; on the contrary, quoted Smith r. Lane (21 Hun, 
632) approvingly. In the State of New York the cases of 
Smith T. Lane (supra) and State v. Mylod (supra) have been 
disapproved in the case of People v. Alcutt (117 App. Div. 
546, aff'd in 189 N. T. 517), it appearing from the reports 
that the district attorney asking for the affirmance of that case 
was William Travers Jeromb, Esq., the learned counsel for the 
defendant here. 


THE PEOPLE T. Cm^E. 363 

Hr. Jiutice Clarke, writing (p. 551) for the Appellate Di- 
TiBion in the laat mentioned cas^ said : " The appellant cites 
five cases in other Statea as in hannonj with Smith 7. Lane 
(sapra). State v. Liffring (61 Ohio St. 39) was under the 
peculiar language of the statutory definition which was held to 
require the use of drugs in order to constitute the practice of 
medicine. There was subsequently an amendment of the Ohio 
statute, and the anbsequent cases of State v. Qravett (65 Ohio 
St. 289) and State v. Marble (72 id., 21) were decided the 
other way. State v. Herring (70 N. T. L. 34) was also de- 
cided upon the wording of the statute. Nelson t. State Board 
of Health (lOS Ky. 769, 87 S. W. Rep. 501) and State v. 
IfcEnight (131 K. C. 717) are not entitled to be considered 
authorities in this jurisdiction, inasmuch as they proceed upon 
the proposition that in those States it would be unconstitutional 
for the Le^slature to limit the right to practice medicine, a 
doctrine counter to that held in the rest of the Union. There 
remains but one case^ that of State v. Mylod (20 E. I. 632), a 
case of a Christian Scientist. The court pointed out that the 
defendant not only did attempt to treat disease, but be denied 
its very existence. In contrast with this last case is People v. 
Pierson (176 N. T. 201). Pierson believed in 'divine heal- 
ing.' His child had catarrhal pneumonia and died. Pierson 
did not call in a physician, but believed the child could be cured 
by prayer • • * omitting to furnish * medical attend- 
ance ' to the child. Judge Haight concludes that the medical 
attendance required by the provision of the Penal Code could 
be furnished only by a physician duly authorized to practice 
under the Public Health Law, and the conviction was sus- 
tained. As opposed to the cases following Smith v. Lane, the 
courts of Massachusetts, Maine, Michigan, Iowa, Missouri, Col- 
orado, Nebraska, Hlinois, Ohio, Alabama, Indiana, New 
Mexic(^ South Dakota and Tennessee refuse to restrict the 



' practice ot medicine ' to the adnunistration of dmga or the 
use of sorgical ingtrajnenta." 

From a study of these caws I most mle that religion is be- 
yond judicial interfereooe so long as one keeps it to himself 
and does not jeopardize others; but the momoit there is an in- 
vasion of the rights of the State bj some overt act or conduct 
that tends to affect the safety and fatnre welfare of its people^ 
then the civil government maj intervene for its own protection 
and preservation. The government mAj enact laws for the 
Isolation and standardization of onr conduct, and impose 
punishment for those acts which constitute a violation of such 
laws ; hut it must not interfere with opinions on the part of its 
people unless those people reflect them in acts that affect the 
social well-being of the State; then government maj intervene 
for its own welfare. Religious belief ia no excuse for an un- 
lawful act No person under the guise of the practice of the 
principles and tenets of any church may violate the law of the 
land (United States v. Beynolds, 98 U. S.> 145; Dent v. West 
Yirginia, supra). The Beynolds case (supra) seems to settle 
the law in this respect There an indictment was found against 
Beynolds charf^ng him with bigamy under the Bevised Statutes 
of the Territory of Utah. Among his other assignments of 
error on review before the United States Supreme Court the 
defendant urged that he should be acquitted even if he did 
marry the second time, because he believed it to be his religious 
duty. Mr. Chief Justice Waite delivered the opinion of the 
court, and in discussing the defense of religious belief or duty, 
said at page 161 : " On the trial the plaintiff in error, the ac- 
cused, proved that at the time of his alleged second marriage be 
was, and for many years before bad been, a member of the 
Church of Jeans Christ of Latter-Day Saints, commonly called 
the Mormon Church, and a believer in its doctrine ; that it was 
an accepted doctrine of that church ' that it was the duty of 
male members of said church, circumstances permitting, to 



practice polygamy ; * • • that the practice of polygamy 
waa directly enjoined upon the male members thereof by the 
Almighty God in a revelation to Joseph Smith, the fonnder and 
prophet of said church ; that the failing or refusing to practice 
polygamy by such male members of said church, when circum* 
stances would admit, would be ponisbed, and that the penalty 
for such failnre and refusal would be damnation in the life to 
come.' " After a lucid discussion on the meaning of " re- 
ligion " and a review of the extent of religious freedom which 
has been gnaranteed, the chief justice farther said, at page 166 : 
" Laws are made for the government of actions, and while they 
cannot interfere with mere religious belief and opinions they 
may with practices. Suppose one believed that human sacri* 
fiees were a necessoiy part of religious worship, would it he 
seriously contended that the civil government under which He 
lived could not interfere to prevent a sacrifice 1 Or if a wife 
religiously believed it was her duty to bum herself upon the 
funeral pile of her dead husband, would it be beyond the power 
of the civil government to prevent her carrying her belief into 
practice i So here, as a law of the organization of society under 
the exclusive dominion of the United Sutes, it is provided that 
plural marriages shall not be allowed. Can a man excuse bis 
practices to the contrary because of his religious belief t To 
permit this would be to make the professed doctrines of re- 
ligious belief superior to the law of the land, and in effect to 
permit every citizen to become a law unto himself. Govern* 
ment could exist only in name under such circumstances. 
* * * The only defense of the accused in this case is his 
belief that the law ought not to have been enacted. It matters 
not that his belief was a part of his professed rdigion ; it was 
still belief, and belief only," 

John C. Calhonn, in his " Individual Liberty " speech de- 
livered in 1848, said in part : " The safety and well-being of 
society are as paramount to individual liberty as the safety and 



veil-being of the race are to tliat of indiTidaals; and, in the 
Bame proportion, the jMjwer neceaaarjr for the Bafety of society 
ia paramount to individual liberty." The trend of these decis- 
ions seems to define dearly the line of demarcation between 
free religious worship and unlawful practice of medicine under 
the guise of a religion. A thorou^ and prolcoiged search of all 
decisions in point rendered in the conrta of oar States fails to 
reveal that religion or its practice has ever been construed to be 
a business (see also matter of Bandel v. Board of Health, 193 
N. T. 133). The Public Health Law, as its very title indi- 
cated, is a legislative ezpreaaion and enactment for the preserva- 
tion of the health and safety of the people in this State and 
unequivocally prescribea the qualifications of those who seek 
the privilege or franchise to practice medicine. Its vidation 
is made a misdemeanor and is puniehable by fine or imprison- 
ment The Christian Scientist has the right to bdieve that he 
can heal by prayer, but I am of the opinion that if he carries 
and puts that belief into practice for hire and solicits patients 
by advertisement, then he exceeds his rights as an individual 
under the law and comes directly within the prohibition con- 
tained in Article III of the Constitution of the State of New 
York. He must subordinate his beliefs to the ri^ts of the 
community and of the State as an entity when the free exercise 
of such belief either impairs and endangers the health of the 
the people or tends to [dace their health in je(^iardy so that 
safety of the State will be affected. 

So Ht as this record is concerned, I may infer that the 
ailments of which the comfdainant's witness testified actually 
listed and were not feigned. Certainly the continuance of a 
practice or profession to heal as defendant claims can be done 
in this case ought to be the sabject of judicial review of our 
higher and appellate courts. The duty of a magistrate is 
to inquire whether there exists probable cause to believe that a 
defoidant is guilty of a crime and where the propf makes 



oat a case it ia imperative upon a city magiBtrate to ieeao 
a warraDt and hold the defendant to answer at the trial. 

Let a warrant be iaened on proper papers, including the 
transcript of the testimony adduced before me as part of the 
information on which this complaint ia filed against the defend- 
ant, and that the defendant shall be dealt with according to 



Jui. 1911. 


(7« Ulae. 4S3.) 

OonanTunoRAi, Law— Riqhtb QvAtAmwat to pDsoiia Aocusot or 


BELF— Irjcbt bt AuTOMOBiLB— Laws IBIO, ch. 874. 
The proTlKlon In rabdlTlaloii S of Mctlon KH) o( chapter ST4 of 
the Lawa of IBIO (CalUn Law) that "Anj panon operatlnc a 
motor vehicle who, knowing that Injtur haa been cauaed to a per- 
aon or propertj, due to the ralpablUtr ot tho aald operator, or to 
accident, leave* the place ot lald Inlorr or accident, witbont 
atopplns and (ItIds hta name, residence, Inclndlnc atreet and 
Btreet nnmber, and operator'a Ucenae number te the Injured partr. 
or to a police officer, or In caae no police offlcer U la the Ticlnltr 
of aald Injur? or accident, then reporting the aame to the neareat 
police station, or Judicial offlcer, ahall be gnlltr of a felony" Is 
violative of the conitltutlonal provlalon that no person ihall b* 
compelled In any criminal case to be a wltneaa against binwelL 

Dbmubbes to indictment. 

Charles 8. Whitman, District Attorney (Robert C. Taylor, 
of counsel), for people. 

James W. Osborne Bnd OUbert D. Lamb, for defendant 

Cbajct, J. The defendant demurs to an indictment par- 
porting to diarge him with a felonj in the violation of a 
provision contained in saMiviBion S of section 290 of chap- 
ter 374 of the Laws of 1910, commonly called the CaUan 
Law. The demurrant challenges the constitutionality of stich 
provision, and, moreover, contends that the allegations in the 
indictment &il to allege and negative a vic^tion of such law. 



The material portions of the statate are that " Any person 
operating a motor vehicle who, knowing that injarj has been 
caused to a person or property, due to the cnlpahilitj of the 
said operator, or to accident, leaves the place of said injury 
or accident, without stopping and giving his name, residence, 
including street and street number, and operator's license 
number to the injured party, or to a police officer, or in case 
no police officer is in the vicinity of the place of said injury 
or accident, then reporting the same to the nearest police sta- 
tion, or judicial officer, shall be guilty of a felony. • • • " 

These words form part of a new article in relation to motor 
vehicles inserted by way of amendment to the Highway Law. 
Section 295 of article 11 of that law (Laws of 1909, ohap. 30, 
being chapter 25 of the Consolidated Laws), repealed by the 
law now challenged as to constitutionality, provided that " in 
case of accident to a person or property on the public highway, 
due to the operation thereon of a motor vehicle, the person 
operating such vehicle shall stop, and, upon request of a person 
injured or any person present, give such person his name and 
address, and if not the owner, the name and address of such 
owner," while subdivision 307 of the same law made a violation 
of this provision a misdemeanor. 

These provisions followed by a few years the extensive use 
of motor vehicles and first appeared in 1904. Laws of 1904, 
chap. 538. Similar laws were enacted at aboat the same 
time in Maine, New Jersey, Michigan, Florida, California 
and other States. 

The provision under consideration is limited by its con- 
text to injuries inflicted upon public highways and by proper 
construction to such as are caused directly or indirectly by 
the motor vehicle operated. 

The constitutional provision invoked by the demurrant forma 
part of subdivision 6 of article I of the Constitution of this 
State, commonly called the Bill of Bights. It reads, "nor 



shall he be compelled in any criminal case to be a witness 
against himself." The common law protects against com- 



may assert bis privily when interrogated upon oath, and ao 
acting he is at every step protected by tbe principle of the 
common law &e preserved and safeguarded kv tbe Constitution. 

The word " witness " ta nsed in tbe constitutional provision, 
althou^ never jndicially defined, bas been applied in the cases 
to one potentially able to give testimony, to one called upon 
to testify and to one required to furnish doctunentary proof. 

Tbe phrase " in any criminal case " as so used bas been 
judicially applied to proceedings onder tbe executive, legis- 
lative or judicial powers of government directed against tbe 
person invoking tbe provision, or against co^fFenders with 
such person, or against norelated third parties, to such as 
are preliminary, collateral or independent, and both to such 
as are pending and not pending at the time of tbe assertion 
of the privilege. With respect to subject-matter, disclosures 
protected against include not merely admissions per se evi- 
dencing criminality, but also statements by possibility form- 
ing a link in what might be a chain of inculpating evidence 
and to disclosures which, apart from the fact disclosed, mi^t 
reveal to the inquirer independent sources of information tend- 
ing to establish tbe guilt of the person invoking the constitu- 
tional provision. In a word, tbe phrase " nor shall he be com- 
pelled in any criminal case to be a witness against himself " 
bas been adjudicated to mean that no man shall be compelled 
to an ntterance of any fact by word or pen which utterance 
might then or afterward be used as evidence against him in 
proceedings then pending or afterward to be brought. 

A similar provision applicable to proceedings in the Fed- 
eral courts is found in tbe Fifth Amendment to the Constitu-. 
tion of the United States. 

While reference is made to six illustrative casee^ this de- 
cision rests upon analogy rather than precedent, as no case 
has adjudicated upon the constitutionality of the law which 
the people chaige the defendant violated. 



In 1881 one HacUe; was ewom as a witness before the 
grand jury on an examination of a complaint against certain 
aldermen and others for feloniously receiving a gift of money 
nnder an agreement that their rotes should be isflnenced thereby. 
Being interrogated he declined to answer some qnestitms on 
the alleged ground that any answers which be could give would 
disgrace bim and have a tendency to accuse him of crime. 
The questions were adjudged proper. Ee atitl declined to 
answer and was adjudged in contempt and sentenced to im- 
prisonment. He bron^t habeas corpus and certiorari pro- 
ceedings, was remanded to cnstody by the Supreme Court, 
and appealed to the Court of Appeals. He invoiced the con- 
stitutional provision in question. It was urged that it did not 
avail him, because, while being compelled to testify by statute, 
he was afforded immimity from prosecution by chapter 539 of 
the Laws of 1853. Denio, J., in the Court of Appeals, after 
stating what would be a literal construction of the constitutional 
provision, held that it was not to be so construed, but that 
in the li^t of the protection which it was designed to give it 
should be liberally construed, and that so construed it applied 
not merely to a proceeding in which the witness was himself 
a defendant, but to a proceeding against others answering to 
the description of co-offenders ; but that an objection to answer- 
ing on the ground that the immunity afforded did not extend 
to prosecutions against the relator which might have their 
origin in independent sources of information disclosed to the 
prosecutor incidentally through the relator's replies was un- 
availing, as the constitutional provision did not protect to that 
extent, and the relator in such event would suffer from the 
misfortune of his situation rather than from any inhumanity 
in the law. People ex rel. Hackley v. Kelly, 24 N, T. 74. 

In 1887 one Sharp was required to appear and give testi- 
mony before a legislative committee charged by resolution 



with the inTeBtigation of the alleged hribery of certain mem- 
bers of the common comicil of the city of "New York. 

Sharp was thereafter indicted with others for giving money 
to a member of such council with intent to influence him 
in respect to the exercise of his powers as each. Upon his 
trial on this charge there was given in evidence against him, 
over his objection and exception, the testimony given by him 
before the investigating coomiittee. It was nrged in support 
of a judgment of conviction that such testimony was prop- 
erly received becaose volontarily given, and that in the giving 
of it the defendant bad waived his privilege. The defendant- 
appellant contended that his disclosares before the Senate 
Coounittee were privileged ; that they were not voluntary, and 
that be was protected from prosecation by various immunity 
statutes, including section 79 of the then Penal Code. In 
discussing the scope of the constitutional provision, Danforth, 
J., in delivering the opinion of the court, commented upon 
the fact that where a statutory indemnity is relied upon aa 
validating a provision making self-accusation compulsory the 
indemnity mnst be as broad as the constitutional exemption, 
and discussed the extent of such exemption by commenting 
upon and reasserting the rule stated in the Hackley case. 
People V. Sharp, 107 N. T. 427. 

In 1894 one Taylor was convicted of a criminal contempt 
in refusing to answer questions while testifying before a 
grand jury, and, being committed for such contempt, obtained 
a writ of certiorari. This being dismissed by the General 
Term of the Supreme Court of the Fourth Department, he ap- 
pealed to the Court of Appeals on the ground, among others, 
that he declined to answer questions relating to alleged acts 
of his which mi^t be crimes, and that he was protected by 
the constitutional provision referred to. The Court of Ap- 
peal^ O'Brien, J., delivering the opinion, held among other 
things, that the constitutional and statutory provisions (IT. 8. 



Const, art. V; State Coiurt, art. I, § 6; Code Civ. Pro., § 837; 
Code Crim. Pro., § 10) declaring that no person ehall be 
compelled to testify against himself in any criminal case protect 
* person called as a witness in any judicial or other proceeding 
against himself, or npon the trial of issnee between others, 
from being compelled to disclose facts or circumstances that 
can be used against him as admissions tending to prove his 
connection with any criminal offense of which he may then or 
thereafter be chaiged, or the sources from or the means by 
which evidence of its commission or of his connection with it 
may be obtained, and discharged the relator. People ex rel. 
Taylor v. Forhea, 143 N. T. 219. 

In 1901 a liquor tta certificate held by one Caigill was 
revoked and cancelled because the defendant within the time 
allowed by law had not interposed a verified answer to the 
petition for its revocation denying that be had violated the 
law by selling on Sunday. In conmienting npon the ttncon- 
stitutionality of the statute requiring the interposition of such 
an answer the Court of Appeals, by O'Brien, J., said: " No 
law can be valid which directly or indirectly compels a party 
to accuse or incriminate himself or to testify by affidavit or 
otherwise with respect to bis guilt or innocence. In every 
case when he elects to remain silent with respect to any charge 
involving unlawful acts which are criminal or subject him to a 
penalty or forfeiture, that is a constitutional privil^e which 
the legislature may not invade. The courts have insisted upon 
giving to the constitutional provision a construction broad and 
liberal enough to permit a citizen to renkain entirely silent 
with respect to the truth or falsity of any criminal cha^^ 
against him if he so elects, and his right to refuse to verify 
a pleading is aa clearly within the privilege as his right to 
refuse to testify. The constitutional immunity from every 
species of incrimination may be as effectually violated by a 
law which compels a person to plead or deny upon oath any 



cliarge involving a criminal offense without regard to the form 
of the investigation as by a law compelling him to testify as a 
witness. The privil^e of silence secnred hj the Coostitntion 
applies to the one case as well as the other." Matter of Peck v. 
Cargai, 167 N. Y. 891, 895. 

In 1908 one Lewisohn was arrested for criminal contempt 
of court in declining to answer, Qpon the ground that bia 
answers mig^t tend to incriminate bim, certain questions put 
to bim as a witness in a proceeding in the Court of Special 
Sessions against one Canfield, who was charged with conduct- 
ing a gambling house. After he had declined to answer and 
before his arrest, the district attorney promised bim immunity 
and brought to bis attention section 842 of the Penal Code. 
Being adjudged in contempt be obtained writs of habeas corpus 
and certiorari wbicb, after a hearing, were dismissed and the 
order of dismissal reversed by the Appellate Division. There- 
upon the people appealed to the Court of Appeals. The opinion 
of that court, written by Bartlett, J., discussed the constitu- 
tional exemption as measured by the immunity given by section 
842 of the Penal Code, and after commenting and quoting at 
length from People ex rel. Hockley, supra, held that certain 
limitations placed by that case upon the extent of the con- 
stitutional exemption were at variance with the constmction 
placed on the Fifth Amendment of the Constitution of the 
United States by the Supreme Court of the United States in 
cases cited in the opinion, and thereupon adopted the larger 
and broader meaning ascribed to the constitutional provision 
in the United States courts, and so adopting it sustained the 
order which discharged the relator. People ex rel. Lewteohn y. 
O'Brien, 178 N. Y. 258. 

In 1908 one Ferguson, a member of a firm of stockbrokers, 
was ordered by a representative of the State Comptroller to 
exhibit to such representative certain of Ferguson's private 
hodki and papers. The demand was made and sought to be 



jiutified hj the proTisiona of aeetion 321 of the Tax L&w. 
That section provided among other things that " Eveiy person 
* * * making a sale * • • of shares or certificates of stock, 
or conducting or transacting a brokerage business should keep 
or cause to be kept a just and true book of aoconnt wherein 
shall be plainly and l^bly recorded " amongst other things, 
the date o^ the number of abarea covered by and the name of 
the party to such sale, etc It further provided that such 
book should at all times be subject to the inspection of the 
Comptroller or any of his representatives. It authorized the 
Comptroller to inquire into and ascertain vrhether the tax on 
any transfer of stocks had been paid, and empowered him for 
that purpose to examine the books and papers of any person, 
firm, company, association or corporation. The law then made 
a refusal to allow inspection of audi "books or any mem- 
orandum or record relating to such sale," etc., a misdemeanor. 

These provisions were in aid of the enforcement of the 
collection of the tax on transfers of stock imposed by chapter 
S41 of the Laws of 1905. The payment of such tax was to 
be evidenced by adhesive stamps. The failure to pay soch 
tax by affixing stamps as provided was made a misdemeanor. 
Tax Law, % 817. 

The relator, Ferguson, having been taken into custody in 
accordance with the provisions of the Tax Law as for a vio- 
lation thereof sued out a writ of habeas corpus, upon whi<ji 
be demanded his discharge on the ground among others that 
the statute was unconstitutional in that it sought to make 
him a witness against himself in a criminal cas& 

Jndge Hiscock, in delivering the opinion of the Court of 
Appeals^ after stating in substance that the requirement for 
the keeping of the public book of account provided for by 
the statute was not violative of the Oonstitnti<m, jostified 
the refusal of the relator to prodnce his private books, papers 
and memoranda on the reasoning of previoos decisions, aty- 



ing among other things : " If the statute had in tenna enacted 
that the comptroller might Bunuuon and examine, under 
oath, the relator for the purpoee of secttring evidence of viola- 
tions hy him and hia firm of the statute in order that such evi- 
dence might be nsed aa a baeis for criminal proceedings or 
an action to recover the prescribed penalties either then pend- 
ing or thereafter to he institated, I sappose that no one would 
Beriouelj contend that it did not violate the Constitotion. 
* * * la the atatnte any less effective or obnoxious vrhen 
it attempts to force the relator to produce before the comp- 
troller private books and papers dnlj identified as his whose 
entries as -well-eetabliahed evidentiary admieaions will be just 
as probative of any violation as any sworn testimony for the 
purpose of aostaining against him a criminal prosecution or 
the action for a penalty which the comptroller is required to 
institute ! The investigation is authorized ; the violations 
are all defined; the punishment and penalties are prescribed; 
the duty of prosecution is laid. There is only lacking the 
evidence, and for any practical or substantial purpose what 
difference does it make whether this is secured by statements 
of a witness under oath or by entries from his books and 
papers, which are competent evidence against him without 
an oath * " People ex rel Ferguson v. Beardon. 197 N. Y. 23fl. 
It will be seen that in the Fei^uson case it was invoked 
anticipatory to any prosecution against the relator; that in 
the Hackley and Taylor cases it was invoked during the 
pendency of a preliminary inquiry; that in the Cargill case 
it was invoked in connection with a special proceeding, and in 
the Sharp and Lewisohn cases during the pendency of criminal 
actions. That in the Hackley, Taylor and Lewisohn cases it 
was invoked by one nnder subpcena; that in the Cargill and 
Ferguson cases it was invoked by one not nnder subpcena; 
that in the Hat^ley case it was nnanccesafully invoked because 
of what was held to be adequate statutory immunity, and that 



in the Lewis(^ caae it was anccessfoU^ invoked becaxise of 
wbat was held to be inadequate statutory iminiinity. It vill 
be further seen that Hackley and Lewiaohn denied the suf- 
ficiency of the immimity from proaecntlon afforded them by 
statute, and that Sharp relied apon an immunity which he 
asserted was so afforded and which he contended had been 
unlawfully denied him, while Taylor, Cargill and Ferguson 
concededly had no auch statutory immunity upon which to 

At the time of the occurrence set forth in the indictment 
and at the time when the statute challenged as to constitu- 
tionality required a statement from the defendant^ no prose- 
cution had been b^un against the defendant; in which re- 
spect the defendant's case is similar to the Fergoson case and 
in the defendant's case, like the case of Taylor, Cargill and 
Ferguson, there is concededly no statute affording him im- 
monity from prosecution based upon a criminality which 
might he evidenced in whole or part by the statement re- 
quired from him, and his case differs from the cases cited 
alone in the circumstance that the statement which this de- 
fendant was required to make was to be oral and unsworn. In 
the cases cited something under oath was sought to be elicited, 
save in the Ferguson case, where incriminatory unsworn 
documentary evidence was required to be produced. 

As a test of the constitutionality of a law requiring a 
person to say or produce something, considered in the light 
of the provision exempting from self-accusation, is whether 
that something required to be said or produced is receivable 
in evidence, it is immaterial whether that demanded ia an 
oral statement provable as an admission against interest or 
a document receivable in evidence for like reason. 

In the statute now imder consideration a person, after 
the happening of an event, is required as stated to make an 
oral unsworn statement The event is one upon which the 



criminal liability of snch person may be predicated. Such 
person is one in whose presence and under whose obserration 
a fact occurred. He is, therefore, prima facie competent to 
testify to the same and for this reason one described by the 
word " witness '* as used in the Constitution. The statement 
is required to be made in either one of two contii^ncies, 
namely (a) where the occurrence is due to the culpability of 
the one required to make the statement, and (b) contrastively 
where it is due to accident. It not being required when the 
injury is unconsciously, as distinguished from knowingly, in- 
flicted, the making of it imports knowledge of the occurrence 
and consciousness of its cnlpabili^ where culpaUe, and, but for 
the provision requiring such statement to be made as well when 
the injury is accidental as when culpable, the mere making of 
the statements would import an admission of culpability. 

The circumstance that the statute also requires the state- 
ment to be made where the injury inflicted is due to acci- 
dent — that is to aay without conscioua culpability — and that, 
therefore, it may conceivably be required where no criminal 
liability attaches to the defendant from the occurrence, does 
not make the statute constitutional, for it is sufficient to render 
it obnoxioua to the constitutional provision that the statement 
required to be made may under some circumstances be self- 
accusatory or tend to establish a criminal liability or subject 
the maker to criminal prosecution. It is not necessary to its 
unconstitutionality that it should inevitably have this effect. 

The first count in the indictment alleges that the injuries 
inflicted by the occurrence respecting which the defendant's 
statement was required, were occasioned by the defendant's 
culpability. As the demurrer admits this, among other facts 
competently alleged, it follows that in the case at bar the 
statement would have been required from the defendant be- 
cause of his conscious culpability, and, therefore, the making 
of the etatemcmt would have furnished not merely evidence 



oi the defendant's identit?' with the operator of the vehicle, 
and in that connection a link in the chain of evidence against 
bim in the event of his criminal prosecution, but also evidence 
of admitted culpability. 

It is elementary that when a person is injured in person 
or property and such injury appears to have been caused by 
the act or omission of another, the circumstances as ascer- 
tained attending the infliction of such injury may indicate 
a civil and possibly also a criminal liability on the part of 
Bucb other because of such other's apparent connection with 
its infliction. Where for the reason that they indicate crimi- 
nal liability a criminal action is begun the public prosecutor 
must prove as prerequisites to a lawful conviction, first, the 
identity of the person prosecuted with the person causing the 
injury, and, second, the tatter's criminal culpability with, 
respect to the same. The first, like any other relevant fact, 
may be proved by the admission of the person prosecuted. 
When BO proved, such fact becomes a link in the chain of 
evidence against him. Thus a person is injured upon a pub- 
lic highway and thereafter dies from the effects of such in- 
jury. The injury causing death results from the violent con- 
tact of a motor vehicle either directly or indirectly with the 
body of the person killed. The circumstances discovered by 
the public authorities indicate that such contact was due 
either to some act or some culpable negligence on the part of 
the person operating the motor, vehicle. The question arises. 
Who was that person } and it thereupon transpires that under 
the penalties of the challenged statute such person has said to 
a police officer in the vicinity of the place where the injury was 
inflicted, not an eye-witness to the occurrence : " I am the man ; 
I operated the motor vehicle which caused the injury; my 
address is such a street and such a number, and this is my 
(Orator's license number." 

The admission so made as an evidentiary fact is testified 



to by such officer before a grand jiiry, and, in conjunction 
with other evidence, it prodnces an indictment. That in- 
dictment conceivably charges murder in the first degree 
(People V. Darragh, 141 App. Div. 408), possibly man- 
slaughter in its first degree, and, if not, manslaughter in its 
second degree. A trial of the one indicted follows, and there 
again such person's statement to the officer to the effect that 
he was the man who operated the motor vehicle upon the 
occasion stated in the indictment becomes a link in the chain 
of evidence against him, connecting him with the occurrence 
as therein alleged. 

It follows that the man making the statement, whether such 
statement import conscious culpability or merely his connection 
with the occurrence, has been compelled, in the absence of any 
statutory immunity against prosecution, to be a witness against 
himself in a criminal case. Such was the nature of the state- 
ment required from this demurrant under penalty of convic- 
tion of felony should he omit to make it. He has omitted to 
accuse himself, and the indictment assailed is the pleading 
initiating the criminal action for his conviction of felony for 
such omission. 

These considerations lead to the conclusion that while the 
facts in the case at bar are dissimilar from those in the cases 
cited, they show, if anything, a more obvious infraction of 
the constitutional provision. In reaching this conclusion the 
extent of the police power of the State is recognized. The 
right under it to enact as well-considered regulations for the 
public safety in connection with the operation of motor vehicles 
upon public highways license and other requirements which 
have for their object the identification of those violating the 
Motor Vehicle Law is conceded. People v. MacWiUiams, 96 
App. Div. 176. It is one thing to require operators of motor 
vehicles to carry identi^ng indicia before such persona have 
broken the law, and quite another to demand either that they 



nuke self-seciuation in case of infringement or fnrtuBh in sach 
case « link in a chain of criminatory eridenoe against them- 
sdvefl. The former can be lawfnlly done. The latter violates 
the Constitntion. 

Haring reached the condnsion that the statute under which 
the indictment is foond is repugnant to section 6 of article I 
of the Constitntion of the State and that for this reason the 
amended demurrer must be sustained, it becomes nnnecessary 
to consider the qnestion as to whether the indictment sofficientljr 
alleges the offense soo^ to be charged. 

Demurrer sustained. 



OOUBT or GSirXBAI. szs&iozra-NBW YOBX CO., 
Jan. 1811. 


<T0 MlK. 446.) 

BnOEnoH— ImncTMEHT, 

ImHcnfEDT— <Fiinaiio and FiLina ahd Fobiul REQOiBma — Kvumiica— 
Otheb Otrrbbb, cm., bt Acoubed. 
There !■ no Improprletr In a Brand Jurr hearing In one proceed- 
ln£ OTldence ol related or unrelated crimes of the defendant pro 
Tided each indictment Ib lound upon legal erldence. 

Where, In a single proceeding, a grand Jtur heari evidence 
against a defendant bearing upon unrelated crimes and finds three 
Indictments against him; the first charging him with the crime 
of mlBappropriatlon as a public offlcer and grand larceny in the 
second degree; the second charging him vrith making a false entry 
in an account as a public ofBcer, with making k false entry In an 
account as a person recelTing money on behalf of the city of New 
York and with making a false entry In an account book belonging 
to and appertaining to said city with Intent to defraud and conceal 
a larceny, and the third charging him with the crime of extor- 
tion, a motion to dismiss the indictments, on the ground that 
orderly practice and procedure before the grand Jury required 
that the evidence relating to the extortion charge should be sep- 
arately heard, and also upon the ground that In presenting the 
evidence as to said charge the minds of the grand Jurors were 
predisposed to believe the defendant guilty of all the offenses, 
should be denied. 

The indictment for extortion charged that the sum of seventy- 
five dollars, the property of T and B, copartners in trade, engaged 
In business under a stated firm name, was feloniously received by 
defendant from said copartners with their consent, such consent 
being then and there by defendant induced by a wrongful use of 
tear on the part of said copartners then and there by defendant 
induced by means of a threat by defendant then and there made 
to said copartners to Injure, annoy, harass and obstruct them with 
said copartners in their business and to prevent them from prop- 
erly, freely and profitably carrying on the same, and eapeclally to 




count with ibe crime of extortion, in that the snm of seventj- 
&ve dollars, the personal property of Joseph Tino and John 
Belsone, copartners in trade engaged in bnainess onder the 
firm name and style of Joseph Tino & Co., was feloniously 
received by the defendant from "the said copartners with 
theit consent, snch consent heing then and there by him, the 
said Richard H, Lee, induced by a wrongful nse of fear, to 
wit; fear on the part of said copartners then and there by 
him, the said Bichard H. Lee, induced by means of a threat 
by him, the said Eichard H. Lee, then and there made to said 
copartners, that is to say, to injure, annoy, harass and 
obstract them, the said copartners, in their business, and to 
prevent them from properly, freely and profitably carrying 
on the same, and, especially, to prevent and hinder them 
from receiving their merchandise at the public docks in the 
city of New York unless they, the said copartners, gave to 
him, the said Richard H. Lee, the said sum of money," etc. 
The stenographer's minutes show that the grand jury heard 
in a single proceeding the testimony of the people's witnesses 
concerning the charges of grand larceny, forgery and extortion, 
and upon such testimony the said three indictments were 
found. The learned counsel for the defendant concede that 
while the misappropriation indictment and the forgery indict* 
ment might be deemed to relate to one transaction, which 
transaction might constitute those crimes, and that, while the 
hearing of those two charges in one proceeding might not 
furnish ground for objection, nevertheless it was manifest 
impropriety for the district attorney, in a single proceeding, 
to present evidence concerning the extortion charge, because 
the latter ofFense was absolutely unrelated and disconnected in 
point of time, circumstance and subject-matter, and urge that 
in presenting evidence of the extortion charge in the same 
proceeding the minds of the grand jurors were predisposed to 
believe the defendant guilty of all of the offenses, and that the 





was guilty of one for the reason that they have found him 
guilty of another, no prejudice results to a defendant 

"A different question would arise if the grand jury, in 
listening to testimony against a defendant, elicited for the 
purpose of establishing the defendant's guilt of B particular 
offense, heard at the same time evidence against the aame 
defendant bearing upon an unrelated crime, and which testi- 
mony did not result in an indictment respecting anch other 
crime. In this event it might perhaps be urged with force 
that the grand jury in finding a given indictment had been 
influenced by the circumstance that there was testimony be- 
fore it in impeachment of the defendant's general character, 
and indicative of his commission of another offence. This 
is not the situation in the case at bar, and for the reasons 
stated I am of opinion that this contention cannot prevail." 

I agree with my learned associate that where, in a single 
proceeding, a grand jury hears evidence against a defendant 
bearing upon unrelated crimes, and upon such evidence finds 
indictments for all of the offenses, a defendant cannot be heard 
to urge that his rights were prejudiced before the grand jury. 
Counsel cite the case of the People v. MoUneux, 168 N. T. 2fl4, 
in support of their contention. It is apparent that, on a trial 
of a defendant before a petit jury, a distinct crime tmconnected 
with, and unrelated t<^ the charge laid in the indictment can- 
not be given in evidence against a prisoner, except where the 
evidence of the other crimes is offered to prove the specific 
crime charged, when it tends to establish: first, motives; second, 
intent; third, the absence of mistake or accident; fourth, a 
common scheme or plan embracing the commission of two or 
more crimes so related to each other that the proof of one tends 
to establish the others ; ftfth, the identity of the person charged 
with the commission of the crime on trial. 

The district attorney, in presenting to the grand jury 
evidence of the unrelated crime in the same proceeding, did 





one of the members of tbe firm of Joseph Tino & Co., was 
the only member of that firm who testified before the grand 
jjxTy concerning the extortion charge, and that whatever trans- 
action the defendant figured in with respect to this charge was 
had solely and esclosively with said Tino and not with his 
copartner, Belaone. Although the indictment charges that tbe 
defendant did receive the money from said copartners with their 
consent, such consent being then and there induced by fear on 
the part of said copartners by means of a threat by him, the 
said Richard H. Lee, then and there made to said copartners, 
nevertheless there was no testimony before the grand jury to 
show that there was any fear on the part of Belsone induced by 
means of a threat to him, made by the defendant. The defend- 
ant, therefore, urges that if any crime is charged in the indict- 
ment it was not established before the grand jury, and that if 
any crime was established before the grand jury it was not 
charged in the indictment. In other words, it is argued by the 
learned counsel for the defendant that the fear charged must 
be inspired in the individuals and not in the copartnership, 
because a copartnership is an entity distinct from the copart- 
ners. This claim would be forceful if the indictment had 
charged that the fear on the part of the co-partnership was 
induced by means of a threat; but a careful perusal of the 
indictment clearly shows that the phrase, " fear on the part 
of said copartners, induced by means of a threat," is de- 
scriptive of the individuals composing the firm of Joseph 
Tino & Co., and refers to Joseph Tino and John Belsone 
mentioned in the first part of the indictment In the light 
of the evidence before the grand jury, it was not necessary 
for the indictment to allege that the copartners were put in 
fear by means of a threat on the part of the defendant. The 
indictment would have been sn£Scient if it alleged that the 
money was obtained by a wrongful use of fear induced by a 
threat to do an unlawful injury to the business of which 



tTobn Bebone was a member. The &ct that Tino gave to tlie 
defeodaot copBrtnerBhip money did not require the pleader 



oonirrT ooubt— tokfkzns ooxmrpr, 

Jul ISll. 


(70 UlM. 458.) 

Canamu. Law — Fobueb Ai>Jin>iot.TiOK Aim Beooitd Jbopaxdt — Couit- 


CanmAi. PBoomnsi: AoqinainoiT, Dttcstitcxe and TxAjtana or 

JuBiBDicnoN — TKuisras of Pboszcutioit to Oteib Cointn: 

AjouiavmxT akd Pixa — Fobicxb AoqinTTAi. ob Coimcrnow: 

Waitkb or Bkbobb — Waivix bt Failuki ob Dilay to Objict: 

Pbockbdinob OS Revhw— Rrraw — Attidatits amd PBOors ourv 

SIDE or bioobd; Deoisiok oh bethw— Osouhds fob Retzbbaii — 

Ikhatekiai. asd TroHinoAL EBBOsa. 

An appeal from a convlctloii In a Court of Special SeeilonB must 

be determined on the evidence and proceedings contained In the 

return and not on the uncorrotiorated ex parte affldAvlt on which 

the appeal wbb allowed. 

Where a defendant appears before a maglitrate wltli counsel 
and, without oblectlng to the JurladlctloiL of the court, pleads to 
the charge against him, the objection that the warrant which was 
served In another county was not Indorsed by a magistrate of that 
county before service Is waived, and the magistrate before whom 
defendant was arraigned has Jurisdiction to proceed. 

The exclusive Jurisdiction of a Court of Special Sessions, under 
section 56 of the Code of Criminal Procedure, to try a charge of 
assault in the third degree continues until an application has 
been made for a certificate of removal under sections 67 and 68 of 
•aid Code. 

A defendant charged before a Justice wltb assault In the third 
degree Is not entitled to a preliminary examination before trial. 
Where the defendant is on ball an adjournment of the case for 
a preliminary examination, though Irregular, does not aSect the 
merits and Is waived by detendant'a failure to object to tbe Jurla- 
dlctlon of the court. 



On appeal from a convlctloti In a Court of Special I 
errara not aftectlng the merits and not raised b7 defendant's affi- 
davit on which bis appeal was allowed cannot be considered. 

A plea of former conviction must give the date, place and the 



sacb visit an entry was made in the docket of the justice aa 
follows : 

" Before Daniel A. Tarbell, Justice of the Peace, North 
Lansing, Co. of Tompkins, N. Y. Abraham Cuatt, com- 
plainant against himself. Charge: Assault and Battery, 
8rd degree. Complained that he had committed an assault 
and battery against the person of Leroy Buck, and plead 
guilty to the charge in the 3rd degree, when a fine of three 
dollars was imposed npon him and was paid. Dated this 18th 
day of June, 1910." 

On the same day, Leroy Buck, the injured party, appeared 
before A. J. Conlon, another justice of the peace of said 
town, made an information in writing in due form, charging 
the defendant with assault in the third degree, committed 
on that day, whereupon a warrant was issued for the arrest 
of the defendant Thereafter, and on the 26th day of Au- 
gust, 1910, the defendant was arrested on said warrant in 
the town of Van Etten, Chemung county, which warrant was 
not indorsed by a magistrate of Chemung county; the defend- 
ant was brought into Tompkins county and taken the next day 
before Justice Conlon, and was there arraigned on said charge 
of assault in the third degree. The defendant was represented 
by counsel and no question was raised, then and there, as to 
the validity of the warrant nor the arrest ; neither was the plea 
of former conviction interposed. The defendant pleaded not 
guilty and demanded an examination. The case was adjourned 
by the justice to August 31, 1910, for examination, and the 
defendant admitted to bail. 

The defendant duly appeared on the adjourned day, with 
his counsel, the case was called and the justice tberenpon 
denied defendant's application for an examination. The de- 
fendant then demanded a jury trial and a jury was drawn 
and the case adjourned for trial to September 3, 1910. The 
defendant thus far interposed no objection to the proceeding, 





People y. Wandell, 21 Hun, 515. An interesting discussion of 
the law of waiver in criminal actions is found in Fierson v. 
People, 79 N. Y. 424, and People v. Cignarale, 110 id. 23. 

The purpose of a warrant is to bring tbe accused before tbe 
court, but jurisdiction does not necessarily depend on the war- 
rant. A defendant may, after a warrant has been issued against 
him and before be is arrested, appear before the magistrate 
where the information is filed and plead to the information 
and thereby submit to the jurisdiction of the court without 
being arrested on the warrant, and such appearance without 
objection waives all defects in the warrant and confers jurisdic- 
tion. The irregularity in the arrest and warrant was not juris- 
dictional and did not divest the justice of jurisdiction. People 
V. Webster, 75 Hun, 278; People v. Carter, 88 id. 304. In 
People T. Eberspacber, 79 Hun, 410, the question of the ille- 
gality of the arrest was raised. The warrant was issued by the 
recorder of the city of Poughkeepsie on a charge of assault in 
the third d^ree^ the defendant was arrested in Westchester 
county, the warrant not being properly indorsed, and on being 
bronght before the recorder he asked his discharge on the ground 
of the illegality of his arrest, which was denied. The court 
held as follows : " We think the point as to the defendant's 
arrest does not affect the validity of his trial and conviction. 
The complaint was made and a warrant properly issued and 
the court had jurisdiction of the offense charged. It was, there- 
fore, authorized to try and determine the complaint against the 
defendant whenever he might be brought before the court." 
The general rule is that " it is no defense to a criminal prosecu- 
tion that the defendant was illegally or forcibly brought before 
the court * * *. In general, when one is liable to be de- 
tained upon a criminal charge, the court will not inquire into 
the manner of his capture, * * * but will hold him to 
answer thereto." See Crocker Sheriffs (3d ed.), 85. 

It is urged that the defendant was entitled to a preliminary 



esamination before triaL He cites no authority for this claim 
and I believe none exists. The coart of special sessions had 
exclusive jurisdiction of this action (Code Crim. Pro., § 56), 
subject to the power of removal provided bj sections 57 and 58 ; 
but no application was made for removal, so jurisdiction con- 
tinued in the court of special sessions. The provisions of the 
Code of Criminal Procedure concerning examination^ sections 
188 to 221 inclusive, relate to actions prosecuted by indictment. 
It )3 held in People v. Johnson, 187 N. T. 319, that part IV 
of the Code of Criminal Procedure, conmiencing with section 
133 and ending with section 698, relates only to actions prose- 
cuted by indictment The justice of the peace, Conlon, had 
exclusive jurisdiction to try this case and no application was 
made to remove, so a preliminary examination was properly 
denied. People v. Miller, 124 N. Y. Snpp. 158. 

The defendant was not harmed by the adjonmment from 
August twenty-sixth to thirty-first, as he had been admitted to 
bail. If any error was committed by the justice in adjourning 
the case for an examination and then on the adjourned day 
denying it, such error was waived by the defendant not object- 
ing to it and excepting. It was irregular to adjourn for a pre- 
liminary examination. Yet that did not affect the merits, and 
the question was not raised by the defendant in the affidavit on 
which this appeal was granted, and consequently cannot be con- 
sidered here. People v. Beatty, 39 Hun, 476; Code Crim. 
Pro., § 750 ; People v. Giles, 152 N. Y. 141 ; People v. Scheme, 
140 App. Div. 95. 

The defendant did not plead the former conviction which is 
one of the matters which should be pleaded if relied on as a 
defense. Code Crim. Pro., § 334; People v. Cignarale, 110 
K. Y. 29. But notwithstanding his failure to plead the former 
conviction, the defendant did prove on the trial what occurred 
before Justice Tarbell, and it was before the jury for their 
consideration. I do not think the plea of former conviction 



can be invoked in favor of the defendant in tbia action. A 
former conviction, to be available aa a defena^ afaonld be a valid 
conviction. Certainly the proceeding had before Justice Tar- 
bell vras not an examination or trial upon the merits. The de- 
fendant there appeared and complained of himself, as tbe 
justice terms it ; no arrest was mad^ no information was made 
or filed, 00 oath was administered and 00 one was sworn. Tbe 
purpose of that appearance before the justice and that pro- 
ceeding was not to punish the defendant for the assault, but to 
enable him to escape the full consequences of his wrong doing. 
It was a fraud on the coort, conducted entirely by the defend- 
ant; it was not based on an information or any legal proof. 
There is nothing to sustain it. It is absolutely void and the 
jury did very properly disregard it 

" The general rule ia that a former conviction or acquittal 
procured by fraud of the defendant is no bar to a subsequent 
prosecution. Thns, where the accused, hearing of a pending 
or threatened prosecution by indictment, voluntarily or by col- 
lusive arrest goes before a justice of the peace and is by him 
convicted of a misdemeanor, be cannot subsequently plead 
former jeopardy to an indictment for the same crime. If tbe 
prosecution was controlled and managed by tbe accused, be 
has never been in jeopardy ; and the proceeding being void tbe 
State may atUck it collaterally." 12 Cyc. 262, sabd. 5. 

The above quotation is abundantly sustained by citations 
from various jurisdictions, and its reasoning is such as to com- 
mend it as well 

Tbe defendant, in prosecuting himself adopted a form of 
practice unauthorized by oar criminal law. No opportunity 
was given the injured party to appear and prosecute. Tbe 
defendant in that proceeding acted in the dual capacity of 
complainant and defendant, which ia something that has no au- 
thorization in judicial procednre. There was no competent 
proof before Justice Tarbell of any fiict. Tbe defendant to 



ttvail hunself of a former conviction oogbt to have a^tecifically 
pleaded it when arraigned, giving the date and place of the 
occnrreoce for which be was convicted, before Justice Tarbell, 
and proved the same on the trial, none of which be did ; neither 
did be prove the identity of the two assaults. From anything 
that was before the court there might have been two or more 
separate assaults committed hj the defendant upon Leroy Buck 
on the same day and, if so, they would constitute separate and 
distinct crimes. People v. Gibbe, 93 N. Y. 471. There was no 
proof before Justice TarbeU as to the date of the act for which 
the defendant complained, nor does it appear that it was within 
the jurisdiction of the court The record made by Justice 
Tarbell does not contain statements sufficient to sustain a con- 
viction. It is unsigned and the justice was not informed of 
the gravity of the assault 

The Constitution of the United States provides that no per- 
son shall be subject for the same offense to be twice put in 
jeopardy of life or limb. Our State Conatitution provides, 
" No person shall be subject to be twice put in jeopardy for the 
same offense." Art. ^ § 6. L^al jeopardy does not arise if 
the court has no jurisdiction of the offense. Commonwealth v. 
Peters, 53 Mete. 387 ; Commonwealth v. Goddard, 13 id. 455 ; 
People V. Tyler, 7 Mich. 161. A defense of former conviction 
cannot be sustained on proceedings before a justice of the peace 
on their face absolutely void. And no jeopardy can arise from 
a trial and conviction in a court having no jur^iction. Mont- 
r<»e V. States 61 Miss. 429. 

The verdict of the jury was fully justified by the evidence. 
Jn fact, no other verdict could be expected from the evidence. 
The record contains but few exceptions. If the defendant be- 
lieved the ruling of the court was unfavorable to him he should 
have protected himself by timely exception. Error in the ad- 
mission or exclusion of evidence upon a criminal trial can be 
made available only by objection and exception taken on the 



trial and tbia role is not modified by section S27 of the Code of 
Criminal Procedure. The defendant waived the right to raise 
questions on the admission or exclusion of evidence by not ob- 
jecting and excepting upon the trial. People v. Guidici, 100 
N. T. 503. 

In view of all the evidence and the nncalled-for and brutal 
nature of the assault, it does not appear that the sentence im- 
posed was excessive. The justice of the peace who heard the 
evidence and conducted the trial, which was held a considerable 
time after the assault, was well able to judge as to the penalty 
demanded ; and I cannot saj that he erred in the measure of 
punishment meted out to the defendant. It seems, from a read- 
ing of the evidence, that the defendant has no reason to complain 
of the extent of the pnnishment in view of the serions nature of 
his offense. 

Ordered, that the judgment of conviction be afiGrmed and the 
action proceed as provided by section 766 of the Code of Crim- 
inal Procedure. 

Judgment of conviction afSrmed. 



Dm. 80. leiO. 

(142 App. DlT. 62.) 
CxnfB— OfARBUrsHi^ Taan Dbsbb— FAon Jumiriiiio OoHnonos. 
Appeal from a Judsmeat conTlctbis tlie daEemdant of man- 
Blanghter In tlie flrat degrw. Ehrldenee examined, and heJd, that 
tlie Judtment ahonld be affirmed. 

Appeai. by the defendant, James Dillon, from a judgment of 
the Supreme Coort, rendered on the 29th day of Jane, 1909, 
convicting the defendant of the crime of manslan^ter in the 
first degree^ and also from an order made on the 29th day of 
June, 1909, denying the defendant's motion to set aside the 
verdict and for a new trial. 

Florence J. Svllivan, for the appellant 

John F. Clarke, District Attorney, for the respondent 

Ric^ J. : 

The defendant, who was a police officer of the city of New 
York, on Sunday morning, May 2, 1909, shot and killed Louis 
Probber, a young man nineteen years of age. He was indicted 
for the crime of murder in the second degree, and upon a trial 
was convicted of the crime of manslau^ter in the first d^iee. 
From the judgment of conviction this appeal is taken. 

Isaac Probber, the father of the deceased, was the proprietor 
of a grocery store in the neighborhood where defendant was as- 
signed to duty as patrolman. There is evidence tending to show 
that on the evening before the killing defendant called at the 
store and asked deceased for some e^s, which were not given 


THO PBOPU: r. duxon. 401 

to him; that the following morning (Stindaj) he called at the 
store again and demanded that the vegetables exposed for sale 
on the sidewalk be taken inside. Deceased's father started to 
comply with this direction, but before he had finished the task 
he was placed under arrest by the defendant. It was claimed bj 
persons in the store at the time that the arrest was tmreasonabl^ 
and during an altercation which followed the defendant choked 
his prisoner, wherenpon deceased telephoned police head- 
quarters in the hearing of defendant, requesting that an officer 
be sent to the store to arrest a drunken policeman. As the boy 
turned from the telephone the defendant shot him dead. 

On the part of defendant some evidence was given tending 
to show that the killing was one while he was acting in self- 
defense. The evidence as to what oocnrred at the time Is con- 
flicting, but after giving it moat careful consideration I am con- 
vinced that the killing was without provocation, and that the 
verdict is supported by the evidence. The argument of the 
learned counsel for appellant has had our careful consideration, 
but we can find no good reason for interfering with the action 
of the learned trial court. Indeed, we regard the defendant as 
fortunate in escaping conviction for the crime charged against 

The judgment of conviction must be affirmed. 

HiBscHBEBa, P. J., WooDWAED, BuRB and Cabb, JJ., con- 

Judgment of conviction affirmed. 





George W Pontitu, District Attorney (/. N. Eammond ot 
ootinsel), for respondent The defendant waived the asking 
of the question called for by section 480 of the Code. (People 
V. Thome, 156 N. T. 286 ; People \. Johnaon, 110 N. Y. 134.) 
If the coort shall he of the (pinion that compliance with sec- 
tion 480 was not waived, the proceedings should he remitted to 
the trial court to give judgment or entertain a motion haaed 
upon proper cause. (People v. Bauer, 3 N. T. Grim. Rep. 
434 ; People v. Borle, 96 N. T. 188 ; People v. Kelly, 97 N. T. 
212; People v. Faber, 199 N. Y. 266; People v. Hildebrand, 
1 Hun, 20.) 

Hajqht, J. At the March, 1910, Trial Term of the Su- 
preme Court, Seneca county, the defendant was tried and con- 
victed of the crime of murder in the first degree. After the 
jury had rendered its verdict the defendant's coanflel waived the 
two days' stay given by the statute and consented that the court 
might then proceed to judgment Thereupon the district at- 
torney moved the sentence of the defendant. He was then 
sworn, and answered as to his age, place of birth, etc., but was 
not asked as to whether he had anything to say why sentence 
should not he pronounced against him. The court thereupon 
pronounced judgment, directing that he be conveyed to the 
state prison at Auburn to be there confined until the week be- 
ginning May 15th, 1910, and that during that week he be put 
to death in the manner provided by law. The appeal taken from 
the judgment so entered brings up for review the single ques- 
tion as to whether reversible error was thus committed by the 

It is contended on the part of the district attorney that the 
defendant's counsel had waived any further right on behalf of 
the defendant to show cause why judgment should not be pro- 
nounced by the conversation that took place preceding the mo- 
tion of the district attorney for judgment; but a careful read- 



ing of the record npon that question leads us to the conelouon 
that there was no waiver oi the ligjata of the defendant in this 
T^ard, if waiver there could be. 

It has been one of the indispensable reqairements of the com- 
mon law that no per8(Hi abonld have the sentence of death 
passed against him without first being given the opportnnity to 
personally speak for himself and show cause> if he can, why 
sentence should not be prononnced against him. This right has 
been jealonsly gnarded from very ancient times. (1 Chitty Cr. 
Law, 700; Barbour Cr. Law [2d ed.], 370.) And it is now 
protected by statute. (Code of Cr. Pra, § 480.) 

In the case of Mesmer v. People (45 N. Y. 1) the failure 
to give the defendant the privilege thus accorded him was held 
to be reversible error and a new trial was granted. There was 
a dissent, however, and one of the judges voted to remit the 
proceedings to the Oyer and Terminer to give judgment on the 

In the case of Ball v. United States (140 U. S. 118) it is 
said that at common law in all capital felonies it was essential 
that it should appear of record that the defendant was asked 
before sentence if he had anything to say why it should not be 

In the case of People v. Fdber (199 N. T. 256, 25 N. T. 
Crim. 87) it was held that the failure to give the defendant 
the opportunity to speak for himself before sentence was re- 
versible error. In that case there were errors committed upon 
the trial, and, consequently, a new trial was granted. The 
question, however, as to whether a new trial was necessary, 
had there been no other error committed, was left open for 
further consideration when the question should arise. The 
question is now presented, it being conceded by counsel that no 
other error was committed upon the trial calling for a reversal 
of the judgment. 

The right of a defendant to speak for himself, after oonvic- 



tion in capital cases, is one of substance and should be carefully 
guarded. It is the last opportunity that the law afEorda him of 
speaking for bintself and showing cause, if he is able to do so, 
why judgment should not be pronounced against him. This 
right, given by the common law and now incorporated into our 
statute, compels the courts to accord him the privilege and no 
court has the right to deprive him of it The trial, however, 
terminates with the verdict of the jury. The statute then 
steps in and gives the defendant two days' time to determine 
whether further legal proceedings should be taken in arrest of 
judgment, unless it should be the last day of the term of court, 
or he consents to waive the statutory time. Under the provis- 
ions of the Code of Criminal Procedure additional powers have 
been given to this court in the review of capital cases. The 
error which was committed in the passing of judgment occurred 
after the trial and the verdict of the jury. We, therefor^ are 
of the opinion that, under the increased powers of this court 
given by the legislature, it no longer becomes necessary to grant 
a new trial for errors of this character and that all of the rights 
of the defendant may be fully protected by a reversal of the 
judgment and a remitting of the case to the Supreme Court to 
proceed upon the verdict in accordance with the requiremraits 
of the law. 

The judgment should, therefore, be revised and the case re- 
mitted to the next Trial Term of the Supreme Court in Seneca 
county to proceed upon the verdict according to the statute. 

CuLLEN, CL J., Qkat, Yann, Wzbnxb, "EiacocK and 
Collin, JJ., concur. 

Judgment accordingly. 





Skapleigh, 54 Fed. Sep. 126; State v. Tibbetta. 85 Me. 81; 
Territory v. Baea, 11 K. Mex. 659 ; People v. Fitzgerald, 138 
CaL 189; People v. Van Bouien. 88 Hun, 168; Wallace v. 
State, 9 Tex. App. 290 ; Davit v. United States. 160 U. S. 
487; AUen t. United States, 164 IT. S. 600.) The error in the 
conrt'a charge od the presumption of innocence was not quali- 
fied or cored by the special charges given at defendant's re- 
quest. (iZommeny v. N. T., 49 App. DW. 64 ; People v. Tay- 
lor, 92 App. Div. 29; People v. Levalie, 6 App. Div. 230; 
Mitts V. United States, 164 U. S. 644.) The court erred in 
charging the jury " that if Hany B. Snydam believed the de- 
fendant was armed with a deadly weapon, and that he, Suy- 
dam, was in great danger therefrom, then Suydam was justified 
in seeking to protect himself and in disarming the defendant, 
and if Suydam was so doing, defendant was not justified in 
shooting him while doing it" {People v. Levalie, 6 App. Biv. 

Charles 8. Whitman, District Attorney (Robert C. Taylor 
of counsel), for respondent. The claim that the court erred in 
its chaige as to the presumption of innocence is not sustainable. 
(People V. Sherlock, 166 N. Y. 180; People v. MaHeU, 188 
N. T. 595; People v. Bodawald. 177 N. Y. 408; People v. 
Johnson, 185 N. Y. 219; People v. Quidiei, 100 N. Y. 508; 
PeofAe V. Benham, 160 N. Y. 402; People v. O'Brien, 136 
App. Div. 86.) The trial court committed no error in charging 
" that if Harry B. Suydam believed the defendant was armed 
with a deadly weapon and that be, Suydam, was in great danger 
therefrom, then Suydam was justified in seeking to protect him- 
self and in disarming the defendant, and if Snydam was so 
doing defendant was not justified in shooting him while doing 
it." (People V. Dankburg, 91 App. Div, 67; People v. Du- 
mar, 107 N. Y. 18; People v. Sail, 169 N. Y. 184; PeopU v. 
Pairieh, 182 N. Y. lU; People v. Wenzel, 189 N. Y. 275.) 



KiscocK, J. Appellant was indicted for tlte allied crime 
of murder in the first d^ree because in the city of New York 
on the 19th day of December, 1908, he ahot and killed one 
Snydam. He was convicted of manslaughter in the first degree, 
bat at the instigation of the assistant district attorney the trial 
judge committed such errors that tbe judgment must be re- 
versed and another attempt made properly to pass npon the 
rights of the defendant 

While tbe judgment of conviction baa been nnanimously 
affirmed and a review of the merits thereby precluded, it is 
necessary to recapitulate some of the important facts for the 
purpose of intelligently discussing tbe errors which necessitate 
a reversal 

The appellant invented something and he and the deceased 
and one Jacobs came into relationship for the porpoee of otgaa- 
izing a company to promote and market his invention. Tbe 
appellant became dissatisfied with the treatment received by 
him from tbe others and threatened recourse to various reme- 
dies with the result as claimed by him that various threats were 
made against him by both Jacobs and Suydam conditioned on 
bis so seeking redress against them. On tbe morning of the 
homicide be went to the office of deceased and called him into 
the hall where they had some conversation. Tbe only version 
of what there occurred is ^ven by tbe appellant who says that 
amongst other things Snydam called his attention to and thns 
in effect reiterated his prior threat They shortly returned to 
tbe office and after a few moments during which, so far as I 
am able to discover, there were no apparent present signs of an 
altercation, a struggle was precipitated in the coarse of which 
tbe homicide was committed. Conoededly tbe appellant had a 
pistol in bis pocket but he and the witnesses for the People 
differ as to the commencement of the affray. The latter testify 
that suddenly the deceased called to another person in the c^Bee, 
" For God's sake help me, Qeorg^ he is going to shoot Get 



th&t gun," and that thereupon the deceased and this witness 
attacked the appellant for the purpose of getting awaj the pistol 
and protecting the deceased. The versioD of the appellant is 
that he had his revolver for purposes of self-protection because 
of the threats which had been made against him, and that with- 
out any preliminary warning or provocation the deceased struck 
him on the head aad grabbed him around the body and shouted 
to the other person to grab him and get bis pistol, and that 
this other person did strike him on the head and otherwise 
violently attack him and that in the course of the struggle, 
presumably on his theory for the purposes of self-defense, his 
pistol was drawn and the deceased was shot. 

It will be seen from this brief review of the facts that at 
the trial the claim was made ou behalf of each of the principal 
actors in the tragedy that he was acting in self-defense and that 
the conduct of the other was unjustifiable. The appellant es- 
pecially testifies and claims that he had done nothing whatever 
to warrant the attack which was made on him and in fact that 
until after the attack was conunenced nothing was said by the 
deceased or his companion to indicate their alleged purpose of 
self-defense. Under these circumstances it was manifestly im- 
portant that the court should properly and clearly define the 
appellant's rights of self-protection in case the jury should feel 
inclined to accept his version of the affray. Originally in the 
main charge it did this in a fairly satisfactory manner. 

After stating the law applicable to various situations, not in 
any degree presented by the evidence in this case, the judge 
finally charged: "Homicide is also justifiable when committed 
in the lawful defense of the slayer * * * when there is 
reasonable ground to appreh^d a design on the part of the per- 
son slain to commit a felony, or to do some great personal in- 
jury to the slayer, » « » and there is imminent danger 
of such design being accomplished. Under the provisions of the 
statute, in case a person makes an assault or attack upon an- 



other under such circamsUnces as would lead a reamnable man 
to believe that he is about to kill or to do great bodily injary, 
and there is imminent dan^r of bia doing so, then the person 
attacked has a right to kill and if under such circumstances be 
did kill it -ffoold be justifiable in law." In response to a re- 
quest he also charged correctly and fairly what were the rights 
of self-defense belonging to the appellant in case the jury 
should adopt his view of the circumstances leading up to and 
attending the homicide. 

Unfortunately, however, after all this had been done there 
was crovrded upon the trial judge by the assistant district at- 
torney and he chai^;ed the following request : 

"Mr. Nott: I ask yonr Honor to charge that if Henry B. 
Suydam believed the defendant was armed with a deadly 
weapon and that he, Suydam, was in great danger therefrom, 
then Suydam was justified in seeking to protect hinuelf and in 
disarming the defendant, and if Suydam was so doing defend- 
ant was not justified in shooting him while doing it." 

The errors in this charge are serious and I shall call attention 
to some if not all of them. If the facts were found as stated 
the ri^t was denied to appellant to shoot in self-defense, on 
the theory that Suydam was only doing for hia own protection 
what he had a right to, and, therefore, mig^t not lawfully be 
resisted. But when we examine the premises in this charge, 
we see that they utterly fail to support the final deduction, and 
that the rules laid down in support of Suydam's conduct 
scarcely approximated and much less attained correctness. 

In the first place the only basis which the jury were required 
to find as a justification for the action of the deceased in at- 
tacking appellant was his simple " belief " that the latter was 
armed and that he was in great danger. There was no sng- 
geation of any qualification that this belief must have rested 
upon some reasonable ground, but as charged it was a sufficient 
basis for the action of the deceased even though a creation d 



mere fear or fsacj or remote hearsay information or a delu- 
sion pure and simple and not rationally supported by any action 
or conduct of the appellant Of course a belief so developed or 
acquired would not satisfy the requirements of a justification 
for the conduct of the deceased. 

In the second place the jury in effect were told that if the 
deceased was possessed of such belief, arising no matter how, 
he was justified in seeking to protect himself and to disarm 
the appellant, no limitation being placed on the force which 
might be nsed for that purpose. Again it is obvious that this 
ia not the correct rule, but that even if deceased was protected 
by a justified and reasonable belief that appellant was armed 
and liable to attack and injure him, he was limited to the use 
of such force as might be reasonably necessary, and could not 
indulge in wanton violence for alleged purposes of protection 
and disarmament. (Penal Code^ section 26 ; Rvloff v. People, 
45 N. Y. 213 ; People v. Datikberg, 91 App. Div. 67, 71 ; Peo- 
ple V. Constantino, 153 N. Y. 24, 12 N. Y. Crim. 339.) Thus 
the jury in effect were instructed that no matter how unfounded 
and deluded the belief of the deceased and no matter bow ex- 
cessive might be the violence generated by that belief " de- 
fendant was not justified in shooting." That is, alt that had 
been earlier said concerning the right of the appellant to defend 
himself was swept away, and he was required to submit to any 
measure of violence provided only the jury should find a cer- 
tain mental condition on the part of the one who on appellant's 
theory attacked him first 

These were the last words spoken on this subject and I do 
not feel that we can safely say that the jury in their minds laid 
them beside what had earlier been spoken and from the two 
lines of instruction evolved a correct conception of the law 
which governed the rights of the deceased and his slayer ac- 
cordingly as the facts should be found. But rather it seems 
that the final words must have given a predominant trend to 



their thongbta and bare led them to enter upon tbeir delib- 
eratiooa Trith a falae test. Whatever the merits of the proee- 
cutioQ this was an infringement on the rights of the accosed. 

Serious complaint is made of other alleged errors committed 
by the trial judge in passing on the subjects of the presumption 
of innocence in behalf of the appellant and the consideration 
to be given to evidence of bis prior good character. It is tme 
that the trial judge by failing to charge plainly and concisely 
the rules governing these subjects and by indulging in various 
digressions did incur unnecessary risks of legal error. We 
think, however, that in the end he perhaps protected the rights 
of the appellant and in any event inasmuch as a new trial must 
be had whereon these questions doubtless will be avoided, it is 
deemed unnecessary to consider them at length. 

The judgment must be reversed and a new trial granted. 

Grat, J. (dissenting). I vote for the affirmance of this 
judgment and I consider the ground, upon which the reversal 
of the judgment is placed, to be altc^ther too technicaL 
The trial judge, in his main charge, had instructed the jurors 
upon the law, correctly, and at such length and with snch 
fairness to the defendant, that they could not have been mis- 
led by his ruling upon the request in question. While the 
request was unnecessary, whatever the error in granting it, it 
was, in view of the evidence and of what had preceded in the 
charge, one that we should not regard as prejudicial. 

Cdixsn, CL J., Wbbiteb, Willabd Babtlbtt, Chasb and 
Collin, JJ., concur with Hibcdce, J. ; G&at, J., reads dissent- 
ing memorandum. 

Judgment of conviction reversed, etc. 



lEaroh 14, 1911. 


201 N. T. 172.) 


The defendant appeals from a Judgment of the County Court ot 
Albany county upon a conrictlon of murder In the first degree and 
from an order denylns a new trial Held, that the caae was one 
for tiie Jury; that the defendant had a fair trial before a tribunal 
bavins JurUdlctlon to try the accnaatlon against him, and was 
coDTlcted upon legal evidence Kinply aulBclent to sustain the ver- 

Before the commission of the homicide the legislature con- 
ferred Jurisdiction on the County Court of Albany County to try 
and determine Indictments for crimes punishable with death. 
The act took effect after the date on which the murder was com- 
mitted. (L. 1910. ch. ESS.) Held, that the legislature has power 
to confer Jurisdiction to try past offenses upon an eslitlng court 
and that the County Court of Albany county bad jurisdiction to 
try the appellant for the crime ot which be was convicted. 

S. Sun — TBAnsnnt of Case from Sufbcmb Courr. 

The defendant was not deprived of any right to move to change 
the venue by reason ot the transfer ot the Indictment for trial 
from the Supreme to the County Court (Code Grim. Proc. | 346.) 

The admission of evidence which did not relate to any direct 
Issue In the case and which only tended to establish what was 
otherwise established by uncontradicted evidence, held to be harm- 
lees and not ground tor reversal 

Appeal from a judgment of the Albany Couotj Court 
rendered November 5, 1910, upon a verdict convicting the 




pie V. Beclcwith, 108 N. Y. 67; People ex rel. Lewisohn v. 
Court of Oeneral Sessions. 96 App. Div. 201; 179 N. T. 594; 
People ex rel. Spain v. Coyle, 55 App. Div. 223.) The only 
mode of changing venue in criminal cases ia by direct appli- 
cation to the Supreme Court without any preliminary steps. 
(Code Crim. Pro. § 343 ; People v. McOlaugklin, 2 App. Div. 
408, 411; 150 N. T. 865; People v. Beckmth, 108 N. Y. 67; 
People V. Jackson, 114 App. Div. 697; Matter of Mont- 
gomery, 136 App. Div. 72.) 

Wuj^ABD Babtlett, J. The defendant appeals from a 
judgment of the County Court of Albany county upon a con- 
viction of murder in the first degree, and also from an order 
denying a motion for a new trial. His notice of appeal as- 
sumes also to bring before us several other orders of an in- 
terlocutory character; but as these do not constitute a part 
of the judgment roll as prescribed by section 485 of the Code 
of Criminal Procedure they do not appear to be reviewable 
under section 517 which provides what intermediate orders or 
proceedings may be reviewed. However, we have considered 
every point argued before us in behalf of the appellant, irre- 
spective of any technical objection which may exist as to the 
manner in which it is brought up. 

The defendant shot and killed his daughter, Eva Qreen, a 
girl about fourteen years of age, in the township of New 
Scotland, in Albany county, on the 27tb day of July, 1910. 
The homicide was committed with a rifle, on premises known 
es the Van Dyke farm, at about three o'clock in the after- 
noon, in the presence of the mother of the victim — who was 
also shot by the defendant, but not fatally; a little brother 
five or siz years old; two uncles of Mrs. Qreen, who were 
working on the farm at the time ; and a lad of thirteen, who 
was the son of one of these uncles. The defendant was 
Indicted for murder in the first degree on October 7, 1910, 



and then pleaded not goil^. Snlieeqnently he added to this 
plea a specification that he waa inaane at the time when the 
offense was committed. 

Immediately after the plea of not gtiilty was interposed the 
district attorney, upon notice to connael for the defendant, 
applied to the Supreme Coort at Trial Term for an order 
removing the indictment to the County Conrt of Albany 
county, which order was granted over the objection of the 
defendant's counsel that the statute conferring jurisdiction to 
try capital cases npon the County Court waa an ex post facto 
law as applied to this homicide, because the homicide was 
committed on July 27, 1910, and the statute did not go into 
effect until the lat of September in that year. On October 
17, 1910, the defendant moved in the County Court for an 
order sending the indictment back to the Supreme Court to 
enable him to move at a Special Term thereof to change the 
place of trial on the ground that a fair and impartial trial 
could not be had in Albany county. This motion was denied 
as was also another motion, three days later, to retranafer the 
case to the Supreme Court on account of the objection to the 
jurisdiction of the County Court already mentioned. The 
indictment was then brought to trial in the County Court of 
Albany county at a term beginning on November 1, 1910, 
and resulted in the conviction of the defendant of the crime 
of murder in the first degree. 

As happens in almost all cases of this character it is argued 
that the evidence did not warrant the jury in finding the 
existence of the premeditation and deliberation necessary to 
constitute the highest degree of felonious homicide. This 
contention compels us invariably to consider the facts with the 
utmost care. It will suffice, however, to make as concise a 
statement as possible of the circumstances of the tragedy. 

The defendant, a man about forty years of age, lived with 
his family on a small farm in the southern part of Albany 



ccpunty, where be appears to have been occupied partly in 
inning and to a considerable extent in bunting. One of tbe 
witnesses described him as " a man of the woods." His 
family consisted of his wife, Emma Green ; his daughter, Eva 
Green, (the girl whom he killed), and tbe little boy who has 
been mentioned. There had been marital differences in the 
household for some time, tbe character of which the wife 
refused to disclose when testifying as a witness in her hus- 
band's behalf, saying, " I don't want to tell anything that 
would hurt my husband " — and this notwithstanding that he 
had shot her first, inflicting a terrible wound in the head, at 
the time be killed the daughter. The fact that the daughter 
was an element in the controversy between the husband and 
wife is indicated by hia statement to one of Mrs. Green's 
uncles, not long before the shooting, to tbe effect that " the 
girl had always made trouble ever since she had been with 
them," apparently referring to what had occurred since her 
return from a sojourn in some other family. 

On tbe morning of the homicide tbe differences between 
Green and Mrs. Green had evidently grown so intense that 
tbe wife feared harm at his hands. He was going to cut 
wood, and asked her to go with him and take tbe horse and 
cow to pasture. She went half way, when something in hia 
demeanor or conversation, or both, caused her to turn back 
abruptly and leave him. " I don't think we were quite half 
way to the pasture," she says, " when he stopped and asked 
me what I had been talking about down to his sister's. I 
didn't say anything. I turned around and went back home." 
She then took ber children and went to tbe bouse of a neigh* 
bor named Levi Nickerson. Subsequently she visited another 
neighbor by tbe name of L'Amoureu^ but we know little 
about her movements until afternoon except that she and her 
children remained away from home. At about 3 o'clock p. h. 
tbey came to a wagon house on the Van Dyke farm where 



Mrs. Green'a tmcle, William J. Vadney 'was at work After 
about fifteen minutea' converBation with this uncle, she 
screamed, *' There cornea Charlie 1 " and the defendant was 
seen approaching on the road. At this time he had nothing 
in his hands and was apparently unarmed. He made no 
reply to hia wife's scream but, as the imcle testifies, walked 
directly toward his wife and children while they were scream- 
ing. Mr. William J. Vadney stepped between them and 
asked what the trouble was. The defendant answered, " I 
will tell you," and auggested that they go out of the wagon 
house, hut leave the children there. Mrs. Green hesitated, 
but her uncle told her to come along. They sat down behind 
an old railing near the dwelling house and Green said to Mr. 
Yadney that his wife bad been leaving home and had been 
with other men. Mra. Green denied the charge. Green 
asked Mr. Vadney, " What would you do I " Mr. Vadney 
responded that he knew nothing abont their troubles and 
would advise them to return home, as he coidd see no reason 
why they could not get alon^ but if they could not get along 
together he would advise them to separate. Mrs. Green then 
said she could take care of herself, but wanted the boy. 
" Green said he wanted the boy, and the boy at that moment 
screamed and grabbed hold of his mother." Thereupon they 
returned to the wagon house where Green asked his wife if 
she intended to go back with him. " She aaid she was afraid 
and her daughter Eva would not go at that time." The 
defendant then asked Mrs. Green why she went over to 
L'Amoureux'a that morning. The uncle here testifies: "She 
told me she was afraid of him; that he had asked her to 
accompany him over in the woods several days before that 
and she refused to go. That waa her reason for leaving 
home. Green stood there for a while and be said the girl 
had always made trouble ever since she had been with them." 
Eva said, " I don't know how I could have made any trouble" 



There was some furtlier conversation in which the defend- 
ant said the only thing he had ever done was to hit Eva with 
a whip and the whip struck his wife. Finally Green said 
to his wife, "Do jou intend to go home with me? This 
is the last time I ask you." He went out of the door of the 
wagon house and Mrs. Green and the children left at about 
the same time to go up into the pasture where Mrs. Green's 
other uncle^ Mr. Howard W. Vadney, was at work. 

They had been with Mr. Howard W. Vadney only two or 
three minutes when the defendant reappeared on the scene 
carrying a rifle. Aa be approached the group within thirty 
or forty feet Mrs. Green exclaimed, '* There comea — ^tbere is 
Charlie; be is going to shoot me." Her uncle Howard en- 
deavored to allay her fears and told Green be wanted to 
talk to him. Green said he had talked all he was going to, 
and told his wife to go home "I want you to go home; go 
on," he exclaimed to his wife and children, at the same time 
pointing' his rifle around over their heads. They screamed 
and started toward the wagon house, Mrs. Green calling out 
the name of her uncle William as they approached the build- 
ing, Mr. William J. Vadney beard her voice, came out of 
the wagon bouse, exclaimed to Green, "Wait a minute t" 
when the defendant raised bis rifle and shot first his wife and 
then his daughter. Only the second shot proved fatal. 

After the shooting the defendant manifested some symp- 
toms of contrition. He partly lifted bis wounded wife and 
said, " Why did I do it i " or " What made me do it i " also, 
" Why did yon let me do it ; why didn't you stop me ? " 
When asked, however, to harness the horse and get a doctor, 
be said he couldn't do that ; " The girl is dead and Emma is 
alive ; do what you can for her." Then he turned aroond and 
walked away. 

On the following day when under arrest Green was found to 
be suffering from a gunshot wound in the head which he said he 



liad inflicted npon himself with a revolver. He told a depa^ 
sheriff that he had done the shooting on the day before with 
a thirty-thirtT Savase rifle, which was in the woodshed near the 



iats of long experience in the treatment of the insane who had 
carefully examined the defendant and expressed the opinion 
that he was sane. 

This review of the fact suffices to show that the case was 
one for the jnry and that we should not be justified in inter- 
fering with their conclusion nnless some error of law was 
committed which was prejudicial to the defendant. We will 
now consider the contentions in his behalf to this effect. 

The law points in behalf of the appellant are three in num- 

I. That the Albany CToontj Court did not have jurisdiction 
to try the defendant for the crime of murder in the first degree. 

II. That the defendant was deprived of his absolute right 
to make a motion to change the place of trial. 

III. That it was error to receive in evidence the box which 
was found in the house where the defendant was arrested on 
which was written " Good-bye all," because there was no evi- 
dence that the defendant wrote it or was in any way connected 
with it. 

(1) As to the objection to the jurisdiction of the court: 
The homicide for which the defendant was indicted waa 
committed on the 27th day of July, 1910. By chapter 588 
of the Laws of 1910, passed June 21, 1910, section 39 of the 
Code of Criminal Procedure had been amended so as to give 
the County Court of Albany county jurisdiction to try and 
determine indictments for crimes punishable with death. This 
amendatory statute, however, did not take effect until Sep- 
tember 1, 1910. Aa has been said, the defendant was tried 
in the County Court of Albany for murder in the first degree 
and convicted of that crime at a term beginning on the 1st 
day of November, 1910. It is contended that the County 
Court was without jurisdiction to try this indictment because 
the offense thereby charged was committed before the statute 
took effect which for the first time empowered the County 




it cannot lawfully, we tlunk, in bo doing dispense with any 
of those substantial protections with which the existing law 
surrounds the person accused of crime." (Cooley's Const. 
Lim. [Tib ed.] p. 381; quoted approvingly in Thompson v. 
Utah, 110 U. S. 343, 351 and in Thompam v. Missouri, 171 
TJ. S. 380.) 

In the present case, to try the defendant in the County 
Court of Albany cottnty instead of at a Trial Term of the 
Supreme Court did not deprive him of any protection which 
he would have enjoyed in the latter tribunaL For many years 
capital cases have been triable in the Conn^ Court of Kings 
county. We have not been referred to any case in which a 
statutory enlargement of the jurisdiction of a court has been 
deemed an ex post facto law. The position of counsel for the 
appellant is that one can be tried for a crime only in a tribu- 
nal which had jurisdiction over the offense at the time when 
the act allied to be criminal was committed. If this were 
correct the Constitution of 1894 would have operated to pre- 
vent the trial of any capital cases which arose before its adop- 
tion (except in New York and Kings counties), for that Con- 
stitution abolished the Court of Oyer and Terminer, which 
alone previoosly had jurisdiction generally throughout the state 
to try indictments for murder in the first d^ree. 

The power of the legislature to confer jurisdiction to try 
past offenses upon an existing court has been expressly asserted 
in Massachusetts by so eminent a judge as Chief Justice Shaw, 
who says : " A new tribunal may be erected, or new jurisdic- 
tion given to an existing court, to try past offenses, and this 
is not ex post facto." (Com. v. Phillips, 11 Pick. 28, 32.) 
To the same effect is the case of State v. Cooler (30 S. C. 105, 
110), where this language of the great chief justice is quoted 
with approval; and in Vermont it has been held that the 
legislature may confer upon justices of the peace jurisdiction 
of an offense committed before the passage of the act. (State 



V. Welch, 65 Vt 50.) Upon reaam and authority we are satr 
isfied that the Conntj Court of Albany conn^ possessed juris- 
diction to try the appdUnt for the crime of which be haa been 

(2) Ab to the allied deprivation of the right to move to 
change the venae on the groond of prejudice: 

This point is based on a misapprehension of the meaniitg and 
effect of the provisions of the Code of Criminal Procedure 
relative to the removal of indictments before trial (sections 
344, 346.) This indictm^it having been transferred to the 
County Court of Albany county, if the defendant wanted it 
sent to a term of the Supreme Court held in another county on 
the ground that a fair and impartial trial could not be had in 
the county where the indictment was pending (§ 344, subd. 2), 
he had only to apply to the Supreme Court at a Special Term 
in the district, upon notice to the district attorney, for an order 
of removal (§ 344.) It was not necessary before making 
such application that the indictment should be sent back to 
the Supreme Court in Albany county. A motion to change 
the venue of a Coonty Court indictment must be made to the 
Supreme Court under section 346 of the Code of Criminal 
Procedure but that section does not require that the indict- 
ment shall first be transferred to the Supreme Conrt in the 
county wbere it was found. There was nothing to prevent 
the learned counsel for the defendant from applying to the 
Supreme Court under section 346 for an order of removal on 
the ground mentioned in subdivision 2 of section 344, if he 
had been so advised ; and his client was deprived of no right 
in this respect. 

(3) As to the allied error in receiving in evidence the 
cartridge box with the words " Good-bye all *' written thereon : 

There is some difference of opinion among the members of 
the conrt as to whether or not this was technically an error; 
but aU agree that it was abeolntely harmless. At nuwt, the 



proof was designed to show an attempt at saicide bj the de- 
fendant Bnbsequent to the homicide; but such attempt was 
otherwise proved by the statement of the defendant to the 
deputy sheriff that he had shot himself with a revolver in a 
swamp in the rear of the Yanderbilt residence. The evidence 
did not relate to any direct issue in the case, and could not 
have been hurtful to the defendant, even if the jury assumed, 
what was not proved, that the words on the box bad been 
written by him; for this only tended to establish what was 
otherwise established by uncontradicted testimony, namely, 
an attempted suicide. 

No other exceptions are mentioned in the brief for the 
appellant; nor were any others called to our attention upon 
the oral argument. Nevertheless we have examined every 
one which the record contains and find none which presents 
reversible error. In some instances, if the objection of coun- 
sel bad been more specific than it was the ruling of the trial 
judge might have been different, but it is clear that the numer- 
ous general objections were properly overruled ; and such must 
be the view of counsel, or the exceptions would have been 
argued before us. The defendant has had a fair trial before 
a tribunal having jurisdiction to try the accusation against 
him, and baa been convicted upon legal evidence amply suffi- 
cient to sustain the verdict. It follows that the judgment 
upon that conviction should be affirmed. 

Cuij.EH, Ch. J., Qbat, Wbbneb, Hiscoce, Chasb and 
CoLLiK, JJ., concur. 

Judgment of conviction affirmed. 



IbKdi. 1011. 


(201 N. T. 168.) 

UutDKB— BnsEncK BxAitnnD and Hns to Jubtut Fnn>iiifl that 
Csm OF HoBMx WAS Cohhitrd wnn PummTATion akd 
Deubkbatiok — IKBAKITT — Aixism HoanuTT of Wmmsa — 
Pmfeb Adhubioh of BrnKncK Exflaikhio Act of Wirmss. 
On extunination of the erldence Ktven on the trial and convic- 
tion of defendant for the crime of murder In the flnt degree, held, 
that the evidence JnstiBed Qte finding that the defendant acted 
with premeditation and deliberation, and that he was sane when 
he committed the crime. 

Am bearing open the alleged Inaanltj of the defendant, connael 
tor the defenM Interrogated hiB brother regarding an occorrence 
In which the brother Btrack the defendant with a itlck:. The trial 
Jostice oaked the witnesB: " Why did you give him the blow with 
the Btlck? " and the witness answered, " That's Jost the qnestion I 
wanted to ask just now. He told you that I gave blm the blow 
with the stick, but not why. He came to cut me op with a large 
knife." Counsel for the defense Interposed an objection, stating 
that " the reason of the blow Is Immaterial, Irrelevant and Incom- 
petent" The court permitted the witness, over counsera excep- 
tion, to explain what there was of that episode. Beld, that as the 
defense bad sought to sbow the hostility of this witness toward 
the defendant, his explanation wsa competent, and, therefore, tbe 
ruling of the court was correct 

Appeal from a judgment of the Court of General Sessions 
of the Peace in and for the county of New York, rendered 
June 25, 1909, upon a verdict convicting the defendant of 
the crime of murder in the first degree. 

The facts, so far as material, are stated in the opinion. 



Richard E. Clarke, Jr., Gerard J. Cuoco and George L. 
Lewis for appellant The admission in evidence over objec- 
tion and exception of an attempted assault by the defend- 
ant npon his brother was prejudicial error. (People v. Moli- 
neux, 168 N. Y. 264; People v. Oovemale, 193 N. T. 581; 
People V. Hill, 198 N. Y. 64; People v. Degarmo, 179 N. Y. 
130 ; People v. Romano, 84 App. Div. 318 ; People v. 8chle»- 
sel, 196 N. Y. 476.) The verdict was against the evidence, 
against the weight of evidence and contrary to law. {Roberts 
V. N. Y. E. R. R. Co., 128 N. Y. 464; People v. Barberi, 149 
X Y. 256.) 

Charles S. Whitman, District Attorney (Robert C. Taylor 
of connsel), for respondent. A case of murder in the first 
degree was fully proved. (People v. Hampartjoomian, 196 
N. Y. 77; People v. Farmer, 194 N. Y. 251; People v. 
Hamilton, 137 N. Y. 531; People v. Leach, 146 N. Y. 392; 
People V. Cometti, 92 N. Y. 85; People v. Schmidt. 168 
N. Y. 568; People v. Sliney, 137 N. Y. 570; People v. Fer- 
raro, 161 N". Y. 365; People v. Totterman, 181 N. Y. 385.) 
There was no proof of legal insanity. (People v. Coleman, 
198 N. Y. 166; People v. Jones, 194 N. Y. 83.) The admis- 
sion of evidence of the assault with the knife did not consti- 
tute prejudicial error. (Blossom v. Barrett, 37 K", Y. 434; 
People V. Leonardo, 199 N. Y. 432; 5tma v. Sims, 75 N. Y. 
466; People v. Rodawald. 177 N. Y. 408; People v. Monat, 
200 N. Y. 308; People v. Rimieri, 180 K. Y. 163; People 
V. Gillette, 191 N. Y. 107.) 

WerhbBj J. The defendant was convicted of the crime of 
murder in the first degree, under an indictment charging that 
in the borough of Manhattan, city of New York, and on the 
29tfa day of September, 1908, the defendant killed one Amelia 
Roach by shooting her with a pistol. The killing was admitted 



and the defense was insanitj. After a careful study of the 
record we are convinced that thia defense was not established, 
and that the evidence amply supports the verdict of the jury. 
We shall proceed directly to the consideration of the excep- 
tions which are relied upon by counsel for the defense to 
secure a reversal of the judgment, and for that purpose we 
shall briefly refer to a few pertinent facts. 

The defendant was at the time of the homicide a man 
between 47 and 49 years of age, who had never been married. 
His birthplace was the island of Barbadoee^ which is one of 
the Carribean group. He had led a roving life, working at 
various manual employments, which included farming and 
sailing on the sea. At times he drank to excess, bat about a 
year and a half before the homicide he became a religious 
convert in the city of Philadelphia, and from that time forth 
he abstained from all intoxicants. After leaving Philadelphia 
he worked at fanning in New Jersey and while there he 
received a letter from his mother, who still resides in Bar- 
badoes, giving him the address of his brother William in the 
city of New York. The defendant went to New York in 
July, 1908, and visited some of his relatives, among whom 
there was hia favorite niece, Amelia Boach, the deceased. 
After remaining in New York for several days the defendant 
returned to his work in New Jersey, but went back to New 
York in August, 1908, and made his abode with Estelle 
McConney, another niece. The deceased, Amelia Eoach, also 
lived there, and the defendant had heard nunors that she was 
" going to tbc bad," or in other words was leading or con- 
templating an immoral life. Tfae theory of the defense was 
that this preyed upon his mind, which was already morbid 
upon the subject of religion, and led him to remonstrate with 
her. The deceased did not take kindly to the defendant's 
advice, and on the morning of September 29th, 1908, he 
entered her bedroom for the purpose, as he testified, of bidding 


THE PBOn^E J. WOOD. 42» 

ber good-bye. Wbat took place there is best told in bis own 
words : " I was in the kitchen that morning qaite a little while, 
sitting there, reading a religious tract. It was eome of the 
Bcriptur^ about the Lord. » » » I bad made np my mind 
to pack my bundle — my grip — that night, and go away next 
morning to South Jersey, and go back to work with some other 
man, not that same man, that job had expired. I packed my 
grip that night ; yes, the night before. After I left the kitchen 
I went into the parlor again ; that is my room — it used to be a 
parlor. I thought it was time for me to go and I went I did 
not take any grip. When I came out of my room I went to 
Amelia's room to say good-bye. * » * When I went in 
there she opened up her eyes. And she started cursing me." 
After repeating in detail what bad been said in her cursing of 
bim, be continued, " and then a darkness came over my eyes 
and I had a nervousness, * * * guti then I shot her, and 
I donH know any more about it. I shot right away. I did not 
deliberate over it ; I did not tbink about it." While this tes- 
timony tends to show that the defendant acted upon the im- 
pulse of the instant, there is other evidence from his own lips 
showing that he bad felt hart because the deceased repulsed 
him and refused to listen to his advice ; that he had said to her, 
" I have a great mind to go out and buy a gun and shoot you," 
and when be was asked why he had shot the deceased be an- 
swered, " The Lord told me to do that." To the medical ex- 
perts who examined him as to his mental condition, he said 
that he bad purchased the revolver from a man in Philadelphia, 
but to the police officers he admitted that he had bought it in 
Ninth avenue, Kew Yor^ on Saturday, September 26th, or 
three days before the homicide. He said that be bou^t it to 
shoot ber with, and gave as a reason for not shooting ber on that 
day that he had to get some other cartridges as the ones he 
first obtained did not fit the revolver. There ia other evidence 
which clearly justified the finding that the defendant acted 



vith premeditation and deliberation, and the real question, npcm 
the merita, was whether it was the premeditation of a sane or 
insane man. Upon that issue the evidence was such, we think, 
as to require the finding that the defendant was sane when he 
committed the murder. 

As bearing upon the alleged insanity of the defendant, 
counsel for the defense interrogated hie brother regarding an 
occurrence in Barbadoes when the two were young lads, in 
which the brother struck the defendant over the head with a 
stick, inflicting a wound two or three inches long^ which left 
a scar. During the prc^ess of the examination of this wit- 
ness upon this subject the learned trial justice asked him the 
following question : " Why did you give him the blow with the 
stick ? " and the witness answered, " That's just the question 
I wanted to ask just now. He told you that I gave him the 
blow with the stic^ but not why. He came to cut me up with 
a large knife." At this juncture one of the counsel for the 
defense interposed an objection, stating that "the reason of 
the blow is immaterial, irrelevant and incompetent." 

After some discussion the court permitted the witness, over 
counsel's exception, to explain what there was of that episode. 
Counsel for the defense now urge that it was prejudicial error 
to receive this evidence. We do not think bo. The defense 
had sought to show the hostility of this witness toward the 
defendant^ and his explanation was competent. If the evi- 
dence had been intended to bear solely upon the defense of 
insanity, as is now claimed by counsel for the defense, that 
should have been clearly and affirmatively asserted. There 
was no unequivocal statement that the evidence was not in- 
tended to discredit the witness, and, therefore, the ruling of 
the court was correct 

We have examined the charge in the light of the criti- 
cisms made upon it by defendant's counsel, and we conclude 
that it contains no error which was prejudicial to the defend- 



ant The record as a whole shows that the defendant has 
had a fair trial, and that hia conviction ia fully warranted hj 
the evidence. 

The judgment of conviction should be aflBrmed. 

Cdixen, Ch. J., Qbat, Vahh and Wiliakd Babtlett, JJ., 
concur; Chase, J., concurs in result; Haioht, J., absent. 

Judgment of conviction affiimed. 



lEutdi as, 1011. 


(Ml N. T. S49.) 

L RoBBDT — MimiBB Whux Bkoaqh) n. 

In order to prove tlie crime of robbery It la nnneceMair to sliow 
tliat the property taken belonged to the one harlns It in charge, 
or that It waa taken from bis person, provided It was onlavInUr 
taken In his presence against his will and by means of force or 
fear. (Penal Law, | S120.) If the act la done by a person armed 
with a dangerous weapon, or by one aided by an accomplice actu- 
ally present. It Is robbery In the first degree. (Pena] Law, | 2111.) 

2. Sua — BvTPENCB. 

On examination of the evidence on conviction nndw an Indict- 
ment tor homicide containing two connta, one tor mnrder com- 
mitted while engased In the conmilaaion of a felony and another 
for mnrder committed willfully, felonlooaly and vlth malice afore- 
thought, held, that a caae waa made for the conalderatlon of the 
Jury under the count of the Indictment charging the homicide 
while committing a felony and also that the evidence tended to 
show that the defendant fired the fatal shot with premeditation, 
deliberation and malice. 

S. Same— Aim-MoBTm Stateicent bt Fnson Unabli to SnuK. 

The person killed made an ante-mortem statement; he was un- 
able to speak by reason of a tube placed In his windpipe to enable 
him to breathe after an operation required by the wound bad 
been performed upon him; he answered qneatlona by a nod of or 
by shaking his head; waa consclooa and Intelligent: comprehended 
what waa said to him, and had no hope of recovery. He IdentlAed 
the defendant as the person who shot him by pointing to him with 
his hand. Held, that the declaration of the deceased, althoo^ 
made by acta Instead of words, was competent as a dying de& 

Appkal from a judgment of the Supreme Court rendered 
April 1, 1910, at a Trial Tenn for the county of Eings, npoa 



a verdict convictuig the defendant of tbe crime of murder in 
the first degree. The indictment against the def^idect con- 
tains two GOimte, one for killing Selig Kohn while the accused 
was engaged in the commission of a felony, and the other for 
killing him willfnllj, feloniously and of malice aforethought. 
The case was sent to the jury on both counts. 

The facta, so far as material, are stated in the opinion. 

Edward J. ReiUy and Fred Q. MUligan for appellant. 
The crime of robbery in the first degree not having been 
established by legal competent evidence the verdict of the 
jury should be set aside and a new trial granted. {Bloomer 
V. People, 3 Keyes, 9; People v. O'Neil, 4 N. T. Supp. 
226.) It was error to admit in evidence the testimony of 
Edward Qlennon, the coroner, inasmuch as it was not an ante- 
mortem statement, (People v. Caacone, 196 N. T. 317; 
People V. Kennedy, 164 N. T. 449; People v. Mondon, 103 
N, Y. 211; People v. Molineux, 168 N. T. 264; People v. 
Haynea, 6 N. T. Crim. Rep. 103; Peoph v. WUleti, 92 
N. T. 32.) 

John F. Clarke, District Attorney (Leroy W. Ross of 
counsel), for respondent It was unnecessary to establish the 
crime of robbery in the first degree in order to convict the 
defendant under the indictment. (People v. Morse, 196 N. Y. 
306.) The evidence of Edward Glennon, the coroner, was 
properly admitted. (People v. Del Vermo, 192 N. Y. 470; 
People V. Oovemale, 193 N. T. 581; People v. Morse. 196 
N. Y. 306.) 

Vann, J. In January, 1910, Hyman Kohn carried on a 
private bank and ticket office on the ground floor of No. 120 
Manhattan avenue in the city of Brooklyn, and Tobias Hol- 
lander was his cashier and manager in charge. On the even- 

ly GoC^lc 


ing of Jannar; 3d, 1910, after nine o'clock, when the o£Bce 
had been closed in readiness to lock up, the defendant came 
in said banking ofiSce and booght a postage stamp. The next 
morning at about eight o'clock he again purchased a stamp and 
two hours later a paper. On the morning of January 6th, 
1910, Mr. Hollander had placed in the front window of the 
office where they were plainly to be seen, two thousand rubles 
in Russian bills. Shortly afterward and at about eight o'clock 
the defendant came in and bou^t a stamp and at ten o'clock 
came in again and bought " a Polish letter paper." All the 
morning he had been in a saloon diagonally opposite the bank- 
ing office with several associates, including Fisher and Wasy- 
low, who were jointly indicted with him, except as he left for 
a few momenta at a time on several occasions. At eleven o'clock 
he entered the banking office again, bou^t a Polish newspaper 
and went out At about the same time be was seen to enter 
the saloon, say a few words to his associates and go out. 
Shortly afterwards he entered the banking office again and 
when asked by Mr. Hollander what he wanted made no reply, 
but went near the front window and stood there. Fisher 
and several other men who had been associating with the 
defendant in the saloon came in right after him. At this 
time Hr. Hollander was standing behind the counter and 
Selig Kohn, a brother of the proprietor, was seated in a 
chair on the opposite side of the room. Fisher approached 
the counter, and inquiring of Mr. Hollander the price of a 
ticket to Europe, was told it would be thirty-three dollars. 
He asked, " Have you anything cheaper ? " whereupon Hol- 
lander turned around with his back toward Fisher to consult 
a list on the wall. While Hollander was looking at the list 
Fisher said, " Never mind," and as Hollander turned around 
to face him, Fisher pointed a revolver at him and said: 
" Hands up." One of the other men jumped over a glass 
partition and seized some of the money in the window, 



while another caught hold of Selig Kohn. Selig tried to push 
the men near him ont of the office and was etruggling with 
them when the defendant, who had been standing by the 
window, came up close to Selig, and, holding a revolver 
within two feet of his head, shot him in the neck. He fell 
to the floor mortally wounded and died the next day. All the 
men then ran out, except one who covered Hollander with his 
revolver for a moment and then he ran out also. Five hundred 
rubles, worth over 9300 in American currency, were missing 
from the window, but one bill for one hundred rubles was found 
near the door. Neither Selig Kohn nor Hollander was armed, 
but all the confederates held revolvers in their hands when in 
the store. Fisher and the defendant were arrested on the street 
right after the shooting and a revolver was found on each, and 
on the defendant a dirk also. The revolver taken from Fisher 
was fully loaded, while that taken from the defendant had four 
undischarged cartridges and one shell of a cartridge that had 
been fired. The cartridges were loaded with semi-smokeleea 
powder and the bullets therein were of the same size and make 
as the one found in the dead body of Selig Kohn. The 
empty shell was in all respects like the shell of the loaded 
cartridges. No powder marks were seen about the bullet 
wound, which was in the neck about two inches below the 
Adam's apple. The bullet severed the windpipe, passed 
through the region of the right lung and was found in the 
muscles of the back. In the opinion of the physician who 
conducted the autopsy the wound was the cause of death, 
through hemorrhage and shock. 

No testimony was given by the defendant or by any wit- 
ness in his behalf, as both parties rested at the close of the 
case for the People. 

If one of the defendant's confederates in fact seized the 
money, in the eye of the law the defendant seized it also, the 
same as if each had laid his hands upon it at the same time 



and they bad joictly carried it away. The evidence tended 
to show that the defendant and hia associates were acting in 
concert to accomplish the common purpoee of robbing the 
bank, and if so thej were accomplices in taking the monej, 
and the act of any one in aid of the common purpose was the 
act of alL {People v. Giro, 197 N. Y. 162, 157.) In order 
to prove the crime of robbery it was tmnecessarr to abow 
that the rubles taken belonged to Hollander, or that they 
were taken from his person, provided they were unlawfully 
taken in his presence against bis will and by means of force 
or fear. (Penal Law, § 2120.) If the act was done by a per- 
son armed with a dangerous weapon, or by one aided by an 
accomplice actnally present, it was robbery in the first degree. 
(Id. § 2124.) It is clear from the facts stated, as well as 
from others which we deem it unnecessary to mention, that a 
case was made for the consideration of the jury under the first 
count of the indictment 

The evidence also tended to show that the defendant him- 
self fired the fatal shot with premeditation, deliberation and 
malice. The jury could have found from the circumstances 
that he intended to kill, and not simply to frighten or disable, 
and, hence, the second count of the indictment was also sus- 
tained by the evidence. The charge was fair and adequate, 
and no exception was taken thercta The verdict was not 
against the weight of evidence^ nor against law, nor does it 
appear that justice requires a new trial, and we see no reason 
for disturbing the judgment of conviction, unless some ex- 
ception raised an error of law. 

We have examined all the exceptions and find but one that 
requires the expression of consideration. On the day of the 
homicide, at about four o'clock in the afternoon, one of the 
coroners of Kings county went to the Williamsburg Hospital 
and there saw the deceased, informed him that be was a 
coroner, and asked him if he wanted to make an ante-mortem 



Btatement. Selig Eohn nodded bis bead, for he was unable 
to speak bj reason of a tube placed in his windpipe to enable 
bim to breatbo after an operation reqiiired by tbe wonnd bad 
been performed upon him. Ho waa conscious and when the 
coroner asked bim if his name was Samuel E!obu he nodded 
bis head. When asked if be lived at 147 Huron street, he also 
nodded. Tbe Coroner then asked bim, " Do you now believe 
you are about to die t " Kobn answered in the affirmative by 
nodding in the same way. The coroner further asked him, 
" Have yon any hope of recovery from the effects of tbe 
injury yon have received i " The answer was, " No," con- 
veyed by shaking the head. Tbe coroner then asked him, 
" Are you witling to make a true statement bow and in what 
manner you came by the injury from which yon are now 
suffering," and the answer signified by nodding was, " Yes." 
He was asked if be could identify tbe man who shot him and 
again he nodded. Tbe coroner told an officer to bring in the 
two prisoners, the defendant and Fisber, who were in tbe outer 
room. Kohn at this time was lying on tbe bed, propped up, 
and when the coroner asked bim to identify tbe man who 
shot him he pointed his left hand at the defendant. When 
asked if it was in tbe store or office of his brother be answered, 
" Yes," by a nod of his head and made tbe same answer in 
the same way to the question whether it was between eleven 
and twelve in tbe day. When asked to sign his name to the 
statement that he bad made, as reduced to writing by tbe 
coroner, he was unable to write but touched tbe pen and made 
a cross. He understood English, was conscious and intelligent^ 
comprehended what was said to him and had no hope of recov- 
ery. Tbe written statement was not received in evidence. 

The declaration of the deceased, although made by acts 
instead of words, was competent as a dying declaration. No 
declaration was made or act done to implicate the defendant 
until after Mr. Kohn had stated in tbe only way that cir- 



cniuBtances permitted that he believed be was about to die 
and bad no hope of recovery. The foundation laid for the 
- admission of his dedaratiooB was sufficient within the author- 
ities. {People V. Morse, 196 N. Y. 306, 310; People v. 
Oovemale. 193 N. T. 581, 591; People v. Del Vermo, 192 
N. T. 470, 487; Underbill's Cr. Ev. § 103; 2 Wigmore wi 
Evidence, §§ 1439, 1440.) The evidence was not competent 
to show the effect of the dedarationa upon the defendant, 
because, as he did not tmderstand English, be could make no 
reply, and it waa not received for that purpose. It was offered, 
objected to, ruled upon and received as a dying declaration 
only, and, hence, does not come within the authorities relied 
upon by the appellant, such as People v. Caacone (185 N. Y. 

We find no error in the record, whether raised by an excep- 
tion or not, and, hence, the judgment of conviction should be 


and Chabb, JJ., concur; Haioht, J., absent 
Judgment of conviction affirmed. 



Jul. 19, 1811. 


(142 App. mr. 180.) 

1. JiruBDtonoit— CoCTT or Sficui, Sbuioitb — Pnrr I^abceht. 

Tbe Court of Special 8«m1oiui luw no JorUdlctlon of a prooecn- 
tlon for larceny nnlew the Information upon wblcb tbe warrant ta 
based ataows that the value of the stolen property did not exceed 
twenty-live doUan. 

S. Sams. 

A Cotirt of Special ScmIou haa no Jnrladlctlon of a proaecntton 
tor any larceny above the degree of petit larceny, which la the 
theft of property of the valne of twenty-flve dollar* or leaa. 

A Court of Special Senlons being of limited Jurisdiction, the 
fact that It haa Jnrladlctlon In any particular case must afflrm- 
atlvely appear. 

The fact that a defendant on being arraigned at a Court of 
Special Senlona raised no objection to the Jorladlctlon of the 
court, but merely asked tor as adjournment to procure couosel. Is 
not a waiver of a lack of Jurisdiction, for, If the court lack Jurl» 
diction. It cannot be conferred by c 

Where the lessee of a farm bid In a cow at pnbllc auction and 
his lessor signed a note for the purchase price, owing to the 
vendor's refusal to deliver to the lessee without snch security, 
with an understanding that the cow should belong to the lessor 
If he were compelled to pay the note, he cannot be beld guilty of 
larceny because he openly took the cow on paying the note after 
the failure of the lessee to do so, even thon^ the lessee contends 
that he afterwards repaid the leasor. It la sufficient defense to a 
charge of larceny that the property was appropriated openly and 
avowedly under a claim of title made la good talth, even though 
the claim be untenable. 



Appeal by the defendant, Jolin W. Jones, from a jadgment 
of the County Court of Cortland county, rendered on the 29th 
day of September, 1910, affirming a judgment of a Court of 
Special SesBiouB of the town of Cortlandville in said coon^, 
convicting the defendant of the crime of petit larceny. 

Irving H. Palmer, for the appellant. 

Edward W. Hyatt, for the reapondent 


The defendant was the owner of a dairy farm whiel^ together 
with a herd of cows, waa leased to the complainant on shares. 
Soon after the complainant moved upon the defendant's farm 
be bid off a cow at a public auction. The vendors refused to 
deliver the cow to him unless the defendant would sign a note 
for the purchase price, which was fifty doUars and fifty cents. 
This the defendant agreed to do upon the understanding that 
the cow should be his if he was compelled to pay the note. 
When the note became the complainant did not pay it and the 
same was paid by this defendant. At the time of the purchase 
of the cow she was placed on the farm owned by the defendant 
and occupied by the complainant and waa there at the time the 
defendant paid the note. Some time later the defendant heard 
a rumor that the complainant had mortgaged the cow and in 
the absence of the complainant he went to the farm in the day- 
time and openly took the cow away. Thereupon the complain- 
ant went before a magistrate and obtained a warrant for the 
arrest of the defendant for larceny. The information charged 
the defendant with committing " the crime of violating section 
1298 of the Penal Code " in feloniously taking the cow claimed 
to belong to the complainant " from the fields where eudi cow 
was grazing and taking same in the direction of Cortland," 
where the defendant resided, without the consent or authority 



of the complftinant. No value of the property was stated. On 
arraignment after he had procared counsel the defendant moved 
for hia discharge on the ground that the information waa in- 
sufficient, and upon that being denied he fnrther moved for 
hia discharge on the ground that the magistrate aitting as 
Court of Special Sessions had no jurisdiction to try him. 
UpoD this motion being denied a jury was impaneled and a 
trial had. The complainant waa awom aa a witness end testi- 
fied that the understanding with the defendant when he signed 
the note was that if the defendant should pay it the cow should 
he bis, and acknowledged that the defendant did pay the note 
but claimed that after such payment he repaid the amount to 
him. The defendant denied repayment and teatified that auch 
payments as were made were not upon the note hut upon other 
dealings had between the parties, and that be took the cow 
openly, claiming title, believing that she belonged to him. The 
only proof of value was the undisputed testimony of one witness 
who said the cow was worth forty dollars at the time of taking. 
At the conclusion of the evidence the defendant moved for his 
discharge both on the ground that no crime had been shown and 
upon the further ground that the Court of Special Sessions had 
no jurisdiction to try him for the offense because the value of 
the property was more than twenty-five dollars. Such motion 
was denied and the jury found the defendant guilty. An appeal 
was allowed to the County Court of Cortland county, which 
affirmed the judgment, whereupon defendant appealed to this 

Assuming under the authority of People v. Smith (86 Hun, 
485) that the information was aufBcient upon which to base a 
warrant for larcaiy generally, it was not sufficient to show the 
crime of petit larceny which the Court of Special Sessions had 
jurisdicticm to try because it was not shown that the value of 
the property did not exceed twenty-five dollars. If property 
of the value of more than twenty-five dollars ia stolen the 



crime cotnniitted is grand larceny in the second degree (Penal 
Law, § 12&6), trial for whicli can be had only after indictment 
(Code Crim. Froc. §§ 4, 222.) Petit larceny is a misde- 
meanor and can be committed <Hily by the stealing of prop- 
erty of the value of twenty-fire dollars or less. (Penal Law, 
§§ 1298, 1299.) Conrts of Special Sessions are given juris- 
diction by Bubdiviaion 1 of section 56 of the Code of Crim* 
inal Procedure to hear and determine the crime of petit 
larceny, but have no jurisdiction to hear and determine charges 
of larceny in any other degree. Not only did the information 
fail to show that the value of the cow was twenty-five dollars 
or less, but the undisputed evidence upon the trial was that she 
was worth forty dollars. It thus affirmatively appeared that 
if in fact any crime was committed it was that of grand lar- 
ceny in the second degree which the Coort of Special Sessions 
had no jurisdiction to hear and determine. A Court of Special 
Sessions being a court of limited jurisdiction the fact that it 
has jurisdiction in a particular case must affirmatively appear. 
(People V. McLaughlin, 57 App. Div. 454.) 

On his arraignment the defendant appeared without counsel 
and did not raise objection to the jurisdiction of the court, bat 
asked for an adjournment for the purpose of procuring connseL 
While such failure to raise objection at the first opportunity 
might possibly be deemed a waiver of irregularities if the court 
had jurisdiction, as was held in People v. Shaver (37 App. 
Div. 21) and in People v. Hugging (110 id. 613) and in Peo- 
ple V. Winne98 (3 N. T. Cr. Eep. 89), there could be no 
waiver of the jurisdiction of the court and no consent could 
confer jurisdiction upon a court which had none. (Cancemt 
T. People, 18 IS. Y. 128.) The trial of the defendant, thwe- 
fore, by the Court of Special Sessions was a nullity. 

In addition the proof showed that no crime was committed. 
The agreement was that if the defendant paid the note given 
for the purchase price of the cow she should become his prop- 



erty. Confessedly he did pay the note. The compUinaiit says 
that be repaid the defendant and the defendant disputes it 
Even if the complainant is right in his contention the defend- 
ant had sufficient reason to claim title to the cov, and from his 
standpoint there is nothing to impngn his good faith in so 
doing. Section 1306 of the Penal Law provides that it is a 
sufficient defense to a charge of larceny that the property was 
appropriated openly and avowedly, nnder a claim of title pre- 
ferred in good faith, even though such claim is untenable. 

Assuming, therefore, that the jnry had jurisdiction to ren- 
der a verdict of guilty against the defendant, on the facts estab- 
lished the verdict would have been wrong and must have been 
set aside. 

The judgments of the County Court and of the Cotirt of 
Special Sessions are reversed and the defendant discharged. 

All concurred. 

Judgments of conviction reversed and defendant discharged. 





Munh, 1911. 


<N. T. Law Joonul. Vol XLT, No. 6.) 

Pehal Laws, fi 1G3D, 1884 — Pcbiio Noisahob— Srosnra HiOH Bx> 

Th« having and keeping ot large quantities of higb exphMlree, 
wltb blaatlng capa In one pile, Aeld, nnder the clrcamBtancea of 
the case, to be crimlnaL 

Joseph Du Vivier, deputy asBistaitt district attorney, for the 
People ; O. M. Prest for Arthur R. Lewis, etc ; Norman W. 
Kemgood for James Healing and the KeTstone National 
Powder Company; Peter P. Acr^elli for the Municipal Ex- 
plosives Commission. 

Fbeschi, City Magistrata This inquiry is had under sum- 
moDses issued by this court to ascertain and determine whether 
a crime has been committed, and if any, by whom, and for such 
final disposition thereof as at law is provided. 

The defendants are charged by the learned district attorney, 
among other things, with a violation of section 1894 of the 
Penal Laws of the State of ^ew York, which provides: 

" Section 1894. Keeping Gunpowder Unlawfully. A per- 
son who makes or keeps gunpowder, nitro^ycerine or any other 
explosive or combnstible material within a city or village or 
carries such material through the streets thereof in a quantity 
or manner prohibited by law or by ordinance of the city or 
village is guilty of a misdemeanor. * * » Any person or 
persons who shall knowingly present, attempt to present or 



cause to be presented or ofFered for shipment to an; railroad, 
steamboat, steamship, express or other company engaged as 
common carrier of passengers or freight, dynamite, nitro- 
glycerin^ powder or other explosives dangerous to life and 
limb, without revealing the true nature of said explosives or 
substance so offered or attempted to be offered to the company 
or carrier to which it shall be presented, shall be guilty of a 
felony. « » * » 

Two thousand three hundred pounds of dynamite and 10,000 
blasting caps or exploders ordered by H. M. Tileston & Co. of 
the Keystone National Powder Company for shipment by 
steamship Santa Clara, of the American and Cuban Steamship 
Line, were delivered by the Katherine W., a tug owned by 
James Healing, and placed on the Pier 8, East Kiver, on De- 
cember 24, 1910, where the representatives of the Fire Com- 
missioner of the City of New York subsequently found the 
cases of dynamite with the exploders. 

The defendant Lewis, doing business as the American and 
Cuban Steamship Line, is specifically charged with the unlaw- 
ful keeping of the fifty cases of dynamite and blasting caps. 

The prosecutor admits that the cases containing the explosive 
material in question were properly marked. He does not cbai^ 
that either of the defendants manufactured, sold or carried ex- 
plosives in and through the streets of the City of New York. 
The law regulating the manufacture and transportation of ex- 
plosive or combustible material within the City of New York is 
to be found in the penal statute quoted above and in the Charter 
of the City of New York, and in such superseding ordinances 
as are hereinafter referred to. 

The complaint against the defendants Keystone National 
Powder Company and James Healing having been heretofore 
dismissed, it must be determined here whether the defendant 
Lewis did unlawfully keep explosives in a quantity or manner 
prohibited by law. 



With respect to the quantity of eiploaives that maj be kept, 
or the manner of keeping the same which is prohibited, it seems 
there is no law; nor is there any ordinance regolating the 
quantity of explosives that one may leave, have, keep or caiTy 
throng the streets or store in any part of the city, except as the 
same is provided for in the provisions of section 763 of the 
Charter of Greater New York (2 ed., l&Ol, p. 416), which 
reads in part as follows : " No person shall mannfactore, have, 
keep, sell or give away any gunpowder, blasting powder, gun- 
cotton nitroglycerine, duolin or any explosives or compounds 
within the corporate limits of the City of New York, except in 
the manner and upon the conditions herein provided, and under 
such regulations as the fire commissioner shall prescribe ; and 
said commissioner shall make suitable provision for the storage 
and safekeeping of gunpowder and other dangerous and explo- 
sive compounds or articles ennmerated nnder this title beyond 
the interior line of low water mark in the City of New 
York. * • •" 

The statutes concerning possession of and transportation of 
explosives in the city are police r^^ations in the prevention of 
nuisance (Foote v. Fire Dep't, 5 Hill, 99; Cathcart v. Fire 
Dep't, 26 N. Y., 529). The forcing section of the charter 
only remained in force nntil the board of aldermen passed 
ordinances regulating the matter provided for in that section. 
On May 18, 1902, the board of aldermen did adopt ordinances 
superseding the foregoing provisions of the charter, and such 
ordinances were approved by the mayor on May 19, 1902. The 
ordinances provided, substantially, that there shall be a munici- 
pal explosives commission which consists of five members, the 
fire commissioner being ex-officio chairman and a member of the 
commisioD, the remaining four members being appointed by 
the mayor, whose duty it is to formulate and adopt " such regu- 
lations as in its judgment may be necessary to carry out the 
purposes of his ordinance, and from time to time to add to or 



in any waj clumge or smend snch regulations, subject to the 
approval by the mayor." Sobdiviaiona 4, 7, 8 and 9 of thia 
ordinance provides: 

" 4. No person, firm or corporation shall have, beep, sell, use, 
give away or transport any gunpowder, blasting powder, gun- 
cotton, dynamite, nitro-glycerine or any substance or compound 
or mixture or article having propeities of such a character that 
alone or in combination or contiguity with other substances or 
compounds it may decompose suddenly and generate sufficient 
heat or gas or pressure, or all of them, to produce rapid flaming 
combustion, or administer a destructive blow to surrounding 
persons or things, within the corporate limits of the Cty of New 
York, excepting in the manner and upon the conditions herein 
provided, and under license issued by the fire commissioner 
under snch regulations aa the municipal explosives commission 
shall prescribe. The said fire commissioner shall have power 
to revoke the license or licenses in case, in his judgment, there is 
an infraction of the provisions of this ordinance or of the regu- 
lationa of the municipal explosives commission. 

7. No holder of a license hereunder can avail himself of any 
of the privileges of the same until he shall have filed a bond 
with the said commissioner in the penal sum of not less than 
one thousand dollars ($1,000) nor more than five thousand dol- 
lars ($5,000), to be approved by the comptroller, the amount 
of the said bond to be determined by the r^nlations as pre- 
scribed by the Municipal Explosives Commission, said bond to 
be conditioned for the payment of any loss, damage or injury 
resulting to persons or property from explosions and for the 
strict observance of this ordinance and the r^;ulationB made 

8. The Municipal Ezploaives Commission may, by a unani- 
mous vote of its members, subject to the approval of the fire 
commissioner, provide for an increase of the amount of the 
bond to be filed with the said oommissioner, in accordance with 



section 7 of this ordinance, to an amonnt not exceeding twenty- 
five thooaand dollars ($26,000), said bond to be approved hj 
tbe comptroller in accordance witli section 7 of this ordinance. 

ft. In case of the violation of the provisions of this ordinance 
or regulations on explosives, even though no damage to persons 
or property be sustained, twenty (20) per cent, of said bond for 
the tirst infraction and the whole amount for the second offense 
shall be forfeited therefor, and paid over to and for the use and 
benefit of the relief fond of the Fire Department of tbe City of 
New York." 

In conformity therewith, the Municipal Explosives Com- 
mission organized, formulated and adopted a set of rules and 
regulations governing the handling and keeping of dynamite, 
etc, to be found in pamphlet form issued by tbe commission, 
entitled " Laws, Bulea and Regulations Gkiveming the Manu- 
facture, Storage, Sale and Use of Explosives and Combustible 
Material in the City of New York " (People's Exhibit 8). 

Among the other regulations formulated and adopted by the 
said commission it is provided : 

" Sec. 27. No explosives shall be landed at the piers or else- 
where in the city or transferred to a vessel lying at a pier unless 
the explosives contained in the vessel making delivery are in 
charge of a duly certified employee or a person, firm or corpo- 
ration licensed to transport or sell explosives within the city 
limits. No explosives shall be landed at the city piere unless 
for immediate loading into wagons for distribution to consum- 
ers for use within twenty-four hours and for which orders have 
been previously received or for immediate transportation by 
railway to points beyond the city limits. 

Sec. 29. Explosives not exceeding five thousand pounds for 
shipment by vessel to ports outside of the city may be loaded 
from one vessel to another when lying at the city piers; pro- 
vided, however, black powder or exploders shall not be trans- 
ferred at the same time with high explosives or tiom the same 



boat or ligbter ; amonnts in excess of five tliousand potmds ahall 
oqIj be pat od board a vessel when it is more tban one tbon- 
Band feet from the city pier line. 

Sec 30. Vessels of licensees approaching tbe cit;' piers shall 
not carry exploders at the same time with explosives." 

Section 46 provides that magazines shall contain only the 
amount of explosives named in the permit. 

One of the questions presented is : Are the rules and regola- 
tioDs of the Municipal Explosive Commiasion binding and 
valid, and have they tbe same force and effect as a lav enacted 
by a legislative body? 

Tbe rules and regulations of the Municipal Explosives Com* 
mission seem to have no binding force or effect and cannot be 
treated and respected as law. Still, they must be regarded as 
regulations of vital importance to the people of this community, 
inasmuch as they deal with and attempt to regulate in matters 
generally and specifically affecting the safety of the public and 
for its welfare. If the orders, rules and r^ulations formulated 
and promulgated by the Municipal Explosives Commission in 
connection with the administrative offices and powers and 
duties of the fire commissioner are to serve any purpose, and 
are to be enforced at all, they ought to have the sanction of the 
legislative and executive branches of our State and municipal 
govermnent. This commission, a creature of the statute law, 
can only have such rights as by law shall be conferred upon it. 
The local legislature — here the board of aldermen — cannot re- 
lieve itself of its responsibility or shift tbe power to legislate. 
The delegation by the board of aldermen of their powers or any 
of them to an administrative commission created by the board 
with authority to ordain by resolution with the same effect as 
though it were a lawmaking body is unlawful. The police 
powers should be jealously guarded by the people. They are 
important privileges conferred by popular will on legislative 
bodies for the common public weal, and for that reason are to 



be carefully and cautiously eierciaed only by legally constituted 
bodies representative of the people in the legislative branch of 
civil government. To allow the legislative body to transfer and 
by resolution or ordinance to confer any of these powers and 
privileges of regulation upon a oonuniasion, committee or per- 
son attached to or a part of the executive branch of our system 
of government would be a clear violation of the cardinal princi- 
ples upon which our government's very existence as founded 
depends. The alienation or even temporary suspension would 
seem to jeopardize our civic wellbeing. 

The storage and handling of high explosives is a matter of 
vital importance and of mnch public interest. All ordinances 
for the government of the city and the regnlation of local in- 
ternal affairs shall be adopted by the board of aldermen and 
approved by the mayor under the provisions of the city charter 
which ia the source of this authority. These powers of a muni- 
cipality may not be delegated to any commission or subsidiary 
body created by the board of aldermen, but only such authority 
or power can be delegated as deals with matters purely minis- 
terial. This does not include the exercise of judgment which 
relates to matters affecting the government of the city ; it only 
concerns merely business acts (Hinman v. Clark, 51 Misc. 252 ; 
Powel V. Tuttlt^ 3 N. Y. 396 ; Comm'r of Excise v. Sackridler, 
35 N. Y. 154; Birdsall v. Clark, 73 N. Y. 73; Matter of Emi- 
grant Bank, 75 N. Y. 388 ; Phelps v. Mayor, etc., of N. Y. 112 
N. Y. 216, 220; Kramrath v. City of Albany 127 N. Y. 575; 
aff'g 53 Hun, 206). 

The power to control the manufacture, transportation and 
keeping of high explosives is a regulation of the greatest im- 
portance, requiring the moat careful and deliberative judgment 
and discretion by the corporate authorities of the municipality. 
Ifo more could be the legislative body usurp the power of the 
executive than the judiciary may of either of them or vice 
versa. If it were otherwise, it would only be a question of B 



short time before our system of independent and three-branch 
form of government would come to an unaucccBsful and dis- 
orderly end. Confusion and chaos would take the place of law 
and the orderly administration of public affairs. The anomal- 
ous condition in the respect of regulating the manufacture, salc^ 
transportation and storage of high explosives and combustible 
materials may be remedied without delay, and suitable and suffi- 
ciently comprehensive statutes or ordinances should be enacted 
or ordained providing that legislative sanction which seems nec- 
essary for the proper establishment of rules and regulations 
concerning the manufacture, having, keeping, transportation, 
sale and use of high explosive and combustible materials. If 
by reason of the improper delegation of power to Instate in 
this respect rules and regulations have been made by a com- 
mission that are not operative and enforcible jnst the same as 
law, then some regulations that are legal ought to be made by 
the proper authorities clearly prescribing and limiting the 
amount of combustible materials that may l^lly be accumu- 
lated at any one time and place. The most effective supervision 
should be exercised in such cases. 

The statutory inhibition against persons keeping explosives 
in a manner prohibited by law or prohibited by a city ordinance 
suggests the question as to whether there is any law or ordi- 
nance prescribing the manner in or condition under which ex- 
plosives may be kept without any infraction of the provisions of 
section 1894 of the Penal Laws. The only regulation as to the 
manner of and condition permitting the keeping of explosives 
may be found in subdivision 4, section 763 of the ordinance 
adopted May 13, 1902, which in part provides: 

" No person, firm or corporation shall have, keep, sell, use, 
give away or transport any dynamite • * • within the 
corporate limts of the City of New York, excepting in the man- 
ner and upon the conditions herein provided, and under license 
issued by the fire commissioner. * * *>* 



The defendant Lewis, through the acts of his i^ents and em- 
ployees, kept and had on hia dock dynamite in violation of this 
ordinance ; in other words, he had no liceoae from the fire com- 
nuBsioaer for the keeping of such dTn&mite. For the purposes 
of this ease I deem it nnnecessarj to consider whether the 
method provided in the ordinance for the issuance of such a 
license is lawful or not 

The punishment, however, for such a violation is prescribed 
in subdiviBiim 9 of the above ordinance, approved May, 1902, 
which reads: 

" In case of the violation of the provisions of this ordinance 
or regulations on explosives, even though no damage to persons 
or property be sustained, twenty per cent, of said bond " (as a 
condition precedent for exercising the privileges under said 
license, conditioned for the payment of any loss, damage or 
injury resulting to persons or property from explosives, and for 
the strict observance of the ordinance) " for the first infraction 
and the whole amount for the second infraction shall be for- 
feited therefor and paid over to and for the nae and benefit of 
the relief fund of the Fire Department of the City of New 

Thus it is made clearly a penalty collectible only under civil 
process, and in nowise has a criminal court jurisdiction over 
this specific offenee. That seems equally true for the violation 
of any portion of the said ordinance except in so far as such 
acts violative of that ordinance may he treated as a public 
nuisance for which a criminal prosecution may be initiated. 

Law is a rule of conduct made by a l^islative body. The 
abortive rules and B^pilationa of the Uunicipal Explosives 
Commission are not law and seem to be contrary to law and 
well established precedents in the decisions of our appellate 
cotirts. They do not impose a duty. Therefore, before consid- 
ering the question as to whether the defendant Lewis has main- 
tained a public nuisance it must be determined that there is a 



law which requireB him to do or prohibits the doing of a certain 
thing. When that has been disposed of, then it must be inquired 
into whether he has been gailty of any act or commission or an 
omission in violation of such duty ao imposed. A public nui- 
sance is defined by section 1530 of the Penal Laws as follows: 
Sec 1530. Public Nuisance Defined. — ' A public nuisance * 
is a crime against the order and economy of the State, and con- 
sists in unlawfully doing an act or omitting to perform a duty, 
which act or omission : 

1. Annoys, injures or endangers the comfort, repose^ health 
or safety of any considerable number of persons ; or 

2. Offends public decency ; or 

3. Unlawfully interferes with, obstructs, or tends to obstruct, 
or renders dangerons for passage a lake or navigable river, bay, 
stream, canal or basin, or a stream, creek or other body of 
water, which has been dredged or cleared at public expense, or 
a public park, square, street or highway ; or 

4. In any way renders a considerable number of persona in- 
secure in life, or the use of property." 

All persons were prohibited from having or keeping dyna- 
mite except upon the issuance of a license and the furnishing of 
a bond (Ordinance 1902, subd. 4). Lewis failed to procure a 
license, as was his duty ; in this way he was guilty of an act of 
omission ; therefore, the keeping of the dynamite wae unlawful. 
No decision has been called to my attention, nor have I learned 
of any that holds that this last cited ordinance is invalid be 
cause, while it provided for a license to be procured " in such 
manner as the Municipal Explosives Commission may require," 
it failed to specify the manner in which the license was to be 
issued or had. The accnmulation and having of 2,300 pounds 
of high explosives with 10,000 exploders stored and kept, one 
OD top of the other, at one plac^ with other freight, where the 
public had easy access thereto, on a dock in the heart of the 
City of New York, as appears from the evidence adduced be- 



fore me, is a jnibtic niuBance (People v. Sands, 1 Johns., K. T. 
78 i ilejer t. Malcolm, 6 Hill, 292 ; Bicker v. McD(mald, 89 
App. Div. 300). The qrllabna in Meyer t. Malcolm (supra) 
states; " The act of keeping a lai^ quantity of gunpowder in 
a wooden building insufficiently secured and situated near other 
buildings, thereby endangering the lives of persons reeiding in 
the vicinity, amounts to a public nuisance." It is liable to ex- 
plode and do great damage to life and property when it is not 
subject to proper care and supervision. Consideration of public 
good must be taken into account. The defendant's servants 
received it, and the defendant may be said to have bad posses- 
sion. The word " have " comprehends every act of possession 
whether for immediate purpose of removal or not, if sack pos- 
session be in a store or other building or place. In the common 
phrase defendant Lewis had the dynamite in his possession 
(Foote V. Fire Dept., 5 Hill 99). In the Kicker case Judge 
Woodward, writing for the courts said, at page 302 : " There is 
no doubt that the keeping of this amount " (about 100 pounds 
or more) " of high explosive in the City of New York is a nuis- 
ance both at common law and nndw ihe provisions of the char- 
ter (Laws 1897, chap. 378, sec. 768) * * * . " 

The courts in civil cases have conaistently maintained that 
the storage of gunpowder, no matter how carefully, in densely 
populated places, is a private nuisance, and the par^ storiog it 
must answer for damages resulting from an explosion^ becaose 
there is always danger of an explosion (He^ v. Licht, 80 N. 
Y. 579; Van Ordeu v. Eobioson, 45 Hun 567, 570), In de- 
termining what constitutes a public nuisance much depends on 
the location, quantity and surrounding circumstances of the 
storing, having and keeping dynamite and exploders. 

The having and keeping of such a large quantity of hi^ 
explosives, with blasting caps, in one pile, under the circum- 
stances of this case, is criminal, and we should have drastic 
laws to deal summarily with such violations. For example, the 



recent exploeion at Commimipaw, IS. J., in which lives and 
property were sacrificed at the threshold of our city, and the 
B&fety of the very island of Manhattan threatened and imperiled, 
ia a sufScient warning to our legislators that our community 
and our people must be protected to the fullest extent. While 
such drastic legislation may work some hardships and inctm- 
Tenience in some few cases, it will, on the whole, protect us 
against terrihle disasters such as I hare cited. 

I am of the opinion that the questions of fact in this case 
should be submitted to a trial court (see People t. Sands, 

Let a formal complaint as proved by the Code of Criminal 
Procedure be taken against the defendant Lewis. 



oomTr oouKT— arsuBKir couBTVt 

AprU 1, IBll. 


Gum Jimr — Inaptonon or Mnrum or 

Tb« mere tact th&t a matter ma preMnted to a fonoer grand 
JuiT which failed to find an Indictment, wlU not Jnctifr the grant- 
ing of an order to Inspect the minutes of the grand JoiT- 

Kotioa to iiupect the Minutes of the Grand Jury. 

Jamea 0. Sebring and W. 8. McOreevy, for Hotioo. 

E. C. Smith, Diatrict Attomej, Opposed. 

BuBBBLL, J. The defendant waa indicted hj the Grand 
Jury of the County of Steuben, on the 5tli day of Jantiary, 
1911, for the crime of Kape in the Second Degree, the case 
having been sent to this Court for trial on January 14tli, 1911, 
and the defendant now seeks to inspect the minutes of the Grand 
Jury, containing the evidence upon which this indictment was 

There was no preliminary examination had prior to the 
action of the Grand Jury, but the main grounds urged by coun- 
sel, why this motion should be granted is that the matter was 
presented to a former Grand Jury which failed to find an in- 
dictment. It appears that the District Attorney subsequently 
obtained an order directing the re-submission of the case to 
another Grand Jury, which resulted in this indictment The 
District Attorney having informed the Court by affidavit that 
he had and was able to produce additional evidence showing the 
guilt of the defendant, and the counsel for the defendant claims 
that the same witnesses were sworn on the resubmission of the 



case as were gwom on the first submiseiou and argaing from 
tha^ claim that no additional evidence waa presented to the 
second Grand Jmy, and that if the evidence was insnfiBcient in 
the first instance to find an indictment that the evidence must 
therefore be insufficient now to stistain this indictment, and 
the moving affidavits allege that they are of the opinion that 
the indictment herein was found upon insufficient and illegal 
and incompetent evidence. 

The proceedings of the Grand Jury have from time immem- 
orial been hedged around with secrecy, and even after the intro- 
duction of a Stenographer into the work of the Grand Jury it 
was followed by an enactment making it a misdemeanor for 
him to disclose any of the evidence given before the Grand 
Jury, it is thus shown that at every step the legislature has 
intended to preserve inviolate the secrecy of the Grand Jury 

In the case of People v. Steinhardt, 47 Misc. 252, 93 N. Y. 
Snpp. 1026, in an exhaustive review of the law governing a 
motion of this character, the court says, 

" Upon what grounds, then, shall the court, having in view 
th6 long-established principle of secrecy, and the reasons upon 
which it is grounded, disclose this testimony to the defendant t 
It is suggested that the power should be exercised to enable a 
defendant to prepare for trial. The fundamental rule govern- 
ing discovery in civil actions is that it must be confined to facte 
which are material to the applicant's cause of action or defense, 
and that it does not enable him to pry into his adversary's case, 
or find ont the evidence by which that case will be supported. 
Pomeroys Equity Jur., Vol 1, Sec. 201. Thus the practice in 
civil causes affords no analogy to support the claim that the 
prosecution should be required to disclose to the defense the 
evidence upon which it expects to prove the charge made in the 
indictment. * • * if the testimony is to be disclosed to 
enable the defendant to prepare for trial, the right of inspection 



follows as a matter of conrse, and the principle of secrecy pre- 
served in our statutes is swept awaj by judicial fiat The only 
substantial ground upon which a motion of this character can 
be entertained is to enable the defendant to more to set aside 
the indictment upon one or more of the grounds permiasible by 
law. This was the conclusion reached by Recorder Smyth in 
People V. Jaehne, 4 N. Y. Crim. Rep. 161. People v. Rich- 
mond, 5 N. Y. CrinL Rep. 97. 

In re Montgomery, 110 K. Y. Supp. 793. The court said, 
" Since the passage of the act of 1885, such motions hare 
been made and granted with more and more frequency, and a 
practice seems to have grown up in the Oonrt of General Ses- 
sions to grant such motions when there has been no preliminary 
examination, which practice seems to be based upon a decision 
made in that court in 1889, in People r. Molineuz, 37 Misc. 
Bep. 60, 57 N. Y. Snpp. 936. That case cites People v. Nau^- 
ton, supra, in which although there had been no preliminary 
examination the motion was denied. This question was care- 
fully considered in the Supreme Court, Criminal Part, by Mr. 
Justice Eenefick, in People v. Steinhardt, 47 Misc. Rep. 252, 
93 K. Y. Supp. 1026, where the cases were examined, who said, 
* So we are confronted with the proposition whether the ignor- 
ance of the defendant aa to the testimony upon which the 
Grand Jury acted and his belief, or, to put it more exactly, his 
surmise, that it is insufficient in law, furnishes a basis for the 
exercise of the judicial discretion to permit an inspection of the 
minutes. This position seems to me utterly indefensible^ yet 
it is not surprising that it should be seriously maintained here, 
for such seems to be the rule laid down in the Molineuz case, 
27 Misc. Rep. 60, 57 N. Y. Supp. 936. If that propoeitiMi 
holds true, then the disclosure of the testimany becomes sub- 
stantially a matter of right, becaose there is no case in which 
the defendant could not furnish the same basis for the cotirt's 
action. It has been suggested that the initiation of the charge 



before the Grand Jury without a preliminary bearing before 
a Magistrate ie an important, if not controlling circumstance in 
granting motions of thia character. I cannot conceire why it 
should be.' " 

It is held that the sole purpose for which the ispection can 
be granted is to enable the defendant to make a motion to set 
aside the Indictment for the reasons assigned in Section 313 of 
the Code of Criminal Procedure, and as now settled by 

People V. aien, 173 N. T. 395. 

People V. Sexton, 187 N. T. 495. 

To the same effect are the cases of Matter of Baldwin, 24 
Crim. Rep. 137. People t. Gaenther, 24 Crim. Rep. 133; 
People V. The Coney Island Jockey Club, 24 Crim. Rep. 522. 

In the case at bar the defendant claims that he believes that 
incompetent evidence was offered before the Grand Jury, but 
fails to stat« facts sufiScient in the moving papers to warrant 
the order aeked for. He does not state wherein any of the pro- 
ceedings of the Grand Jury were irregular, so that the court 
can judge whether it is a matter competent for the defendant 
at this time to challenge or investigate, but mainly relies on the 
fact that the case was presented to a former Grand Jury which 
failed to find an indictment, and the case subsequently having 
been presented to a second Grand Jury with the same witnesses, 
that there must necessarily have been insufficient evidence on 
which to base an indictment the second time. There is do 
force in that contention to my mind, for even with the same 
vritnesses much additional evidence might be brought out on a 
second investigation that was not brought out on the first one, 
additional facts mi^t have come to the knowledge of the Dis- 
trict Attorney that could be proven by the same witnesses and 
which he was not aware of on the first presentation, and a mere 
supposition or surmise that such was not the case is insufficient 
on which to grant the order asked for. 

Motion to inspect the Minutes of the Grand Jury is denied. 



Ju. 81, 1011. 


(142 App. DlT. 524.) 

Anmn to Comnr lluiitm— Ikdictkert Lies Although Acts Cor- 
ii T i T m i HnKtt CanaL — Penai. Law, Sicnoif S62, ConaiBuxik— 
PuLcix TO Faon Ovnr Act — PEAcnoB — Adjoubrunt Aim 
Vnrw or Pmosss — Rauocss lanoci-utTTT — ^Bmicitcc — L«i- 


itaa UP BT PBoncDTioif — Rmmrcx to Oiheb Canm itor 

Section 2 of the Penal Law, deflnlns attempO to commit crimes, 
and section 261, providing tliat one who uniuccenfnllT attempti 
to commit a crime, li Indictable and punishable where the crime 
attempted la punishable by the death of the offender. Include an 
unsuccesslnl attempt to commit morder which, at common law, 
was Indictable as a misdemeanor. 

Section 262 of the Penal Law declaring that section 261 does not 
protect a person who in attempting unsucceaafullj to commit a 
crime accompllabea the commission of another and dlBerent crlme^ 
whether greater or less In guilt, from suffering the punishment 
prcacrlbed by law tor the crime committed, should be construed to 
mean that although a person may have been Indicted for an nn- 
■ncceasful attempt to commit one crime sncb Indictment does not 
tnnilsh Immnnltr from Indictment tor another and different crime 
actually accomplished In connection therewith, and the People may 
elect for which crime he shall be placed on trial and punished It 

Thne, one may be Indicted of an attempt to commit murder In 
the first degree In that he aided and abetted In such attempt, al- 
though the crime actually accomplished by the other person was 
assault In the first or second degree. 

A mere Intent to commit a crime Is not sufficient unless accom- 
panied by some overt act, and where a defendant la Indicted for 
an attempt to commit murder In aiding and abetting another to 
shoot a person with a pistol, that being the overt act, ther« must 
be evidence that be aided, abetted, counseled, commanded. Induced 



or vrocnred the other to conunlt the overt act. Uere erldence that 
he aided and abetted bim In an effort to obtain moner by threat 
li not aufllclent 

It li IrregulBT tor the court to adjourn the trial of a criminal 
case when the Ju? have completed a riew of the premlaes without 
returning to the conrthouae. But the Irregnlorltr I> not fatal 
error, aa a Tlew of the premlaea la not part of a trial of the action 
If no teatlmonr waa taken vhen the premlaes were viewed. 

Except under the condltlona apecUled In Bectiona 9 and 10 of the 
Judlclarr Law, a Judge of a court of record ta not permitted, either 
tor hla own couTenleuce or for aaj other purpose, to bold a term 
of court at hla residence or at any other place than that deaignated 
in accordance with the atatnte. 

On a proaecutlon tor an attempt to commit murder br aiding end 
abetting another to do ao, letters tbreal^iing bodily harm written 
to the penon on whom the attempt waa made, and referring to 
demands for moner, are not admissible where thej' do not purport 
to be written by the defendant, and there la no evidence that they 
were In his handwriting, nor anything to connect him with them 
except a statement by the defendant to the wife of the party 
whose life was attempted statlnft " Tour husband waa well warned, 
we have written to him." 

Where a defendant, charged with an attempt to commit murder 
has denied on cross-exam inatlon that be had been convicted of or 
had been guilty of other murders. It is reveralhle error to allow 
the district attorney In summing up to Inalnuata that records In for- 
eign countries eatabilsta the defendant's guilt U the records have 
not been introduced In evidence and there is no proof that they 

Appbai, by the defendant, Baffaele Pisano, from a judgment 
of the County Court of Kings county, rendered on the 25Ui day 
of January, IdlO, convicting the said defendant of the crime 
of attempt to commit murder in the first degree, and also from 
an order denying bis motion for a new trial 

Martin T. Manton, for the appellant. 

Peter P. Smith. Amatant District Attorney, and John F. 
ClarJce, District Attorney, for the respondent. 



BirsB, J.: 

On November 2, 1909, Gniseppe Cacace waa shot and grier- 
onsly wonnded by Pasqnale Albaoa Defendant waa indicted 
for tlie crime of attempt to commit mnrder in the first degree 
upon the theory that, altbon^ he did not fire the shot, he aided 
or abetted Albano, or coonseled, commanded, indaced or pro- 
cnred him to commit the criminal act. (Penal Law, § 2.) 

Appellant contends that an indictment will not lie for an 
attempt to commit murder in the first d^ree when the acts 
charged constitute another eonsomnmted crime. There does 
not seem to be any exception which dearly presents this qnes- 
tion ; but as there most be a new trial, and the point waa dis- 
cQssed by both counsel, we should consider it At common law 
an attempt to commit murder waa indictable aa a misdemeanor. 
(3 Russell Crimes [6th ed.J, 277; 21 Cyc. 776.) The section 
of the Penal Law defining attempts to commit crimes (ConsoL 
Laws, chap. 40 [Laws of 1909, chap. 88], § 2), and the one 
providing for the punishment thereof (Id. § 261), are each 
sufficiently broad to include this. The latter section provides 
that " A person who unsuccessfully attempts to commit a crime 
is indictable and punishable, unleas otherwise specially pre- 
Bcribed by statute, as follows: 1. If the crime attempted is 
punishable by the death of the offender, * • * tb^ person 
convicted of the attempt is punishable by imprisonment for not 
more than twenty-five years." Under our statute there are but 
two crimes punishable with death, murder in the first degree 
(Penal Law, § 1045) and treason against the State (Id. § 
2382). The latter crime, as distingoiabed from treason against 
the United States, is so rare that I have been able to find but 
one reported case in which an indictment was found, and in 
that case it was quashed and the prisoners discharged. (Peo- 
ple V. Lynch, 11 Johns. 549.) It would seem improbable, in 
the absence of clear expression thereof, that the Lc^lature 
intended to include the rare and exclude the more common 



crime. If I understand tbe argument of the learned counsel 
for the appellant, it amounts to this: Conceding that the de- 
fendant is criminally re^nsible for tbe acts of Alban<^ these 
acts constituted a conamnmated crime of assault in the first or 
' second degree. (Penal Law, §§ 240, 242.) Section 262 of 
the Penal Law declares that " Section two hundred and sixty- 
one [^supra] does not protect a person who, in attempting un- 
successfully to commit a crime, accomplishes the commission 
of another and different crime, whether greater or less in 
guilt, from sufFering the pimisbment prescribed by law for 
the crime committed." Therefore, the defendant in this case 
might be twice indicted and twice pnuiabed for the same acts, 
since they conatitnted both an unsuccessful attempt to commit 
murder in the first d^ree, and a successful attempt to commit 
assault in the first or second d^ree. 

I do not think the argument sonnd. To learn what consti- 
tutes a criminal attempt to commit murder in the first d^ree, 
resort must be bad to sections 2 and 1044 of tbe Penal Law. 
Section 261 relates to tbe procedure respecting and the punish- 
ment for attempts to commit crime, rather than to definitions 
of the acts constituting the crime of attempts. (People v. 
Mine, 91 App. Div. 831, 833; affd,, 178 N. T. 274, 18 N. T. 
Crim. 269; Penal Code, § 686.) It will be observed that the 
section cfmtains the word " indictable " as well as " punish- 
able." I think, therefore, that the fair construction of section 
262 is that, although a person may have been indicted for an 
unsuccessful attempt to commit one crime, such indictment will 
not furnish immunity from indictment for another and differ- 
ent crimes actually accomplished in conoection therewith, and the 
People may elect for which crime be shall be placed on trial, 
and, if convicted, punished. This would seem to be in harmony 
with the provisions of the statute relative to an indictment for 
attempted crime where it appears during the trial that tbe 
attempt was not unsuccessful, hut that tbe crime attempted was 



coDflQimnated. (Penal Law, § 260.) In Bucfa a case the court 
may, in its discretion, proceed with the trial under the indict- 
ment for an attempt, or diacluTge the jury and direct defend- 
ant to be tried for the consummated crime. 

If it should be nrged that such construction would involre 
an inrasion of constitutional ri^ts by placing a man twice in 
jeopardy for the same offense (N. Y. Const, art. 1, § 6), it 
may be said that ancb question cannot arise until after the find* 
ing of a second indictment, and it will be sufficient to meet the 
qnestion then. 

The second question presented is as to the sufficiency of the 
evidence to sustain the verdict If Cacace's death bad resulted 
from the shooting to convict of murder in the first d^ree it 
would have been necessary to establish either a deliberate and 
premeditated design to effect his death, or that an act waa 
committed imminently dangerous to others, and evincing a de- 
praved mind, regardless of human life, although without a pre- 
meditated design to effect death, or that the killing was com- 
mitted without a design to effect death by a person engaged in 
the commission of or in an attempt to commit a felony. (Penal 
law, § 1044.) 

If the shot had resulted fatally, to convict Alhano of murder 
in the first degree upon the groimd that the killing was com- 
mitted from a deliberate and premeditated design to effect the 
death of the person killed, the intent to kill might have been 
found from the use of a deadly weapon, and the result pro- 
duced. (People V. Conroy, 07 N. Y. 62, 11.) It may be that 
if he had been indicted for attempt to commit murder, similar 
evidence would have been sufficient. (Jackson v. SUUe, 94 
Ala. 85 ; Walla v. Stale. 90 id. 618 ; CToshy v. People, 137 HL 
825 ; Jeif v. Stale, 37 Hiss. 821.) Bat mere intent to commit 
a crime is not sufficient unless accompanied by some overt act 
{People V. SuUivan, 173 N. Y. 122.) The overt act in this 
case was the use of the pistol. To convict the defendant as a 



principal m tbia case tliere most be evidence that he aided or 
abetted, coaiueled, commanded, induced or procared Albano 
to commit tills overt act While there ia some evidence in the 
case that he aided and abetted liim in an effort to obtain money 
from Cacace by tlireata, I have been nnable to find any evidence 
that would indicate that he aided, abetted, counseled, procared 
or persaaded him to use his pistol to enforce compliance, or 
■ that he ever knevr of such intent on Albano's part. Whether 
there was evidence enfficient to jiutify anhmiasion to the jury 
of the question of defendant's gnilt upon the ground that, when 
the shot waa fired, he was aiding and abetting Albano in the 
commission of the crime of extortion, whether the evidence as 
to Buch crime amounted to more than verbal threata, in which 
caae it would not be a felony (^People ex rel. Perry v. Oillette, 
200 N. T. 275, 25 K T. Crim. 303) ; or whether there was 
evidence sufficient to bring his acta within the other definition 
hereinbefore referred to of murder in the first degree we will 
not now consider. The case waa not aubmitted to the jury 
upon any sack ground, and they have never passed thereon. 

We mig^t suapend further discussion of this case but for the 
fact that upon the argument of this appeal counsel for the 
appellant pressed upon our attention three errors alleged to 
have been committed during the trial, each of which he con- 
tended was sufficient to require a reversal of the judgment. As 
there must be a new trial, we will consider these. 

The first arises in connection with a view of the premises 
where the shooting waa done. The record discloses that at the 
close of the oral testimony the court adjourned to meet at 
the premises where the shooting occurred, that the court there 
resumed its session, the county judge being present and pre- 
siding; that there were also present the district attorney, the 
defendant, his counsel, the court stenographer, and four court 
officers, although but three of such officers appear to have been 



designated to accompany the jury. No tefltimony was tliwe 
taken, and after the view was completed, instead of Tetnming 
to the court house, the trial of the case was formally adjourned 
until the next day, and then resumed at the county coart house. 
This practice was irregular. (Code Crim. Proc. §§ 411, 412.) 
But, although irr^ular, we do not deem it fatal error, for the 
reason that the view of the premises is not a part of the trial 
of the action. (People v. Thorn. 156 N. T. 286.) If it were, 
then a session of the court was held contrary to the proTisioDs 
of the statute respecting the place of trial. (County Law 
[Consol. laws, chap. 11; Laws of 1909, chap. 16], § 42; 
Greater N. T. Charter [Laws of 1901, eiap. 466], § 1586.) 
Except nnder the conditions specified in the Judiciary Law 
(Consol. Laws, chap. 30; [Laws of 1909, chap. 35], §§ 9, 10), 
a judge of a conrt of record is not permitted, either for his own 
convenience or for any other pnrpose, to hold a term of court 
at his residence, or at any other place than that designated in 
accordance with the statute. {People v. Thorn, sapra, 297.) 
Inasmuch as this view constituted no part of the trial, the fact 
that the learned county judge attempted to hold a session of 
the court contrary to the statutory provisionfl was harmless 

The second objection urged relates to the admission of certain 
doctimentary evidence offered by the district attorney. Two 
letters were produced which Cacace testified he had received 
some time suheeqnent to the shooting which, it ia asserted, con- 
tained references to a sum of $50 which Albano had previously 
extorted from him, and also to another sum of $100 which 
Albano had demanded, and he had refused to pay. This re- 
fusal, it is contended, was the cause of the assault upon him. 
The letters also contain threats of bodily harm if Cacace and 
his wife did not cease to seek information as to the identity of 
the persons who shot him. The letters were unsigned. They 
do not purport to be written by defendant. There was not the 



sUghteet evidence as to the handwriting contained therein, nor 
anything to connect the defendant with the anthoreihip or send> 
ing of them, except testimony by the wife of Cacace, that after 
her hnsband had left the hospital she met defendant, who said : 
" If yoQ will not atop going ahont here and there and speaking 
against me — yoor husband was well warned, we have written 
to him. * * * It is better that you will do the rig^t thing 
or gness the right thing, and that is go away from Sullivan 
Street. • • * We have written him twice, he is well con- 
vinced of it." There is not sufficient in this conversation to 
identify these as the letters referred to, nor is there any evi- 
dence that these were the only letters received by Cacace at 
abont that time from any person. Defendant denied any 
knowledge of or connection with the letters or the sending of 
them. We think that they were incompetent. (Nichols v. 
Kingdom Iron Ore Co., 56 N. T. 618.) The summing up of 
the district attorney is made a part of this record. The great 
importance which he attached to the letters as appears there- 
from warns us that we cannot safely overlook so grave an 

The third alleged error also seems to na to be fatal. Defend- 
ant took the stand in his ovm behalf. Under cross-examina- 
tion he was asked by the district attorney whether he had not 
been convicted of the murder of a woman in Italy on the 16th 
day of April, 1903, and sentenced by the Court of Assize of 
Naples to imprisonment for the term of more than eighteen 
years. He was asked whether he did not kill a woman on the 
bark Ptetta; whether there has not been correspondence be- 
tween the Italian government, or Prime Minister of Italy and 
the Secretary of State of the United States, relative to his re- 
turn to Italy to serve his sentence of eighteen years for murder ; 
whether the Italian government had not made a demand upon 
Robert Bacon, the Acting Secretary of State, in the year 1908, 
that he be surrendered to them in order that he might serve 



such Bentence ; whether (showing a picture) the Prime Minis- 
ter of Italy had not sent thia picture to the Secretary of State 
BO the police coTild identify him; whether be did not kill a 
woman named Oiovanna Scotto Loquianco on the 10th of June, 
1900, at Pensacola, Fla.; whether he waa not conricted and 
Beotenced hy an Italian court to imprisonment for eighteen 
years for killing a man on an Italian ship lying off the coast 
of Pensacola; whether he was not a fugitive from justice after 
conviction by the Italian coort ; whether it had not been a sub- 
ject of correspondence between the Prime Minister of Italy 
and the Secretary of State in relation to his extradition; 
whether he bad not smuggled into the United States kid gloves 
of the value of $100,000 on or about the 24th of September, 
1908; and whether be had not threatened to kill a man 
if he did not go upon his bond when arrested for smug- 

The defendant denied his gnilt. No attempt was made on 
the part of the learned district attorney to establish either of 
the facts su^ested by his innuendoes. But in summing up the 
case he said : " He denied that he had been convicted of mur- 
der and of larceny (sic) twice in Italy. Now, you know how 
these foreign governments keep the records from the day of 
birth until the day of death, and yon can determine for your- 
selves whether yon believe his denial or whether all of these 
records are false." Defendant's counsel : " I wish to interrupt 
and to take an exception upon the record. There is no proof 
of any records before the jury. There were no records intro- 
duced in evidence." The district attorney : " There was some 
examination of this defendant upon correspondence between 
our Secretary of State and the Minister of Italy." Defend- 
ant's counsel : " Not introduced in evidence." The district at- 
torney : " No, but they are in a way on the croae-examination 
of this defendant, and they are mentioned in the record. 
Therefore I had a right to mention them here." The learned 



connty judge preaiding at the tri&l, instead of rebuking the 
district attorney for his unjustifiable conduct, simply re- 
marked, when defendant's counsel proteet«d, " The exception is 
noted,'* and allowed the trial to proceed. From this the jury 
might readily infer that there was nothing calling for criticism 
in the language of the district attorney, and that they might 
consider bis reference to these records as properly made. A 
district attorney oftentimes enconnters difficulties in the per- 
formance of his duties. He should he commended for zeal in 
prosecuting criminals, hut he should not allow his zeal to out- 
run his discretion. Bnt if, in the heat of contest^ he oversteps 
the bounds of propriety, it is the dnty of the presiding judge, 
who is presumed to occupy a position of cool impartiality, to 
check such outbreaks, advise the jury of the impropriety 
thereof, and warn them not to be affected thereby. Conrie- 
tiona of guilty men are desirable^ but conviction must be had in 
accordance with established rules of law. From convictions 
otherwise obtained, which appellate courts are constantly com- 
pelled to set aside, no good, but positive injury, results. In 
this connection we cannot forbear quoting from the opinion of 
Judge Vaitit, and the dissenting opinion of Chief Judge 
Gui'i.BN, of the Court of Appeal^ in the case of People v. 
Cascone (185 N. T. 817, 20 N. T. Crim 175). Judge Vakh 
says: " We close our review with the remark, made as a delib- 
erate remonstrance against the necessity for frequent reversals 
in criminal cases, that too many prosecuting officers run dan- 
gerous, foolish and unprofessional risks in order to secure a 
conviction." And Judge Cullsh says : " I join, however, with 
my brother in reprehending the manner in which important 
criminal prosecutions are so frequently conducted at this time, 
often evincing either ignorance of the ordinary rules of evi- 
dence or disr^ard for the interest of both the People and the 
defendant, which alike require ^t a trial should be had 
according to law." 



The JQdgment of conviction must be reversed, and a new 
trial granted. 

JzttKB, P. J., Thomas, Cabb and Rich, JJ., coocurred. 

Judgment of conviction of the Conntj Court of Kingps 
cotm^ reversed, and new trial ordered. 



Jw. SO. 1811. 


(US App. DlT. 401.) 


IimATBiAL— i M i m i^-TiAt/— Aow or Jddob not Pujviuoui. 
m DcnifDANT. 

A peraon mar ba convteted ol % vtobtlon of tha PbdaI Law In 
procnrlng and pladng woman In the custody of anothsr for Im* 
moral porpotea for a conatdaratlon racetved, althoutfi a trap waa 
laid for tho defendant and tba peraoni recelTlns the cnitodr of 
the women did not Intend to uae them for Immoral porpoaea. 

The word " knowlnglr." as need In the statute, la limited to tha 
raeelpt of the moner, to tha procuring and to the Immoral pnr- 
posea for which tha women were procured; that la to ear, relates 
to the Intent and purpose of the defendant. 

EMdence examined, and held, that the treatment of counsel fbr 
the defendant br the court at trial and a direction to show cause 
why he shonid not be pnnlahed for contempt when taken In con- 
nection with the chane that the Jnrr should not consider the in- 
cident was not prejudicial to tha defendant 

Afflrmed Uarch 14, 1911, lOI N. T. 

Appbal by the defendant, Belle Moore, from a judgment of 
the Court of Oeneral Sessions of the Peace in and for the 
connty of New York, rendered against the defendant on the 
19tb day of May, 1910, convicting her of a violation of section 
2460 of the Penal Law. 

Alexander Karlin of connsel [iTarlin & SuBch, attorneys}, 
for the appellant. 

Robert C. Taylor of counsel ICharles 8. Whitman, District 
'Attorney], for the respondent. 



Ci>ABSs, J. : 

The defendant iras ccmvicted npon an indictment charging 
her with the crime of knowingly receiving money for and on 
account of procuring and placing women in the castody of 
another person for immoral purposes. 

We have carefnlly examined the evidence in this case and 
find that the verdict of the jary was abundantly supported 
thereby. The only questions we deem it necessary to consider 
are as follows: 1. Section 2460 of the Penal Law as it existed 
at the time of the acts complained of, is entitled " Compulsory 
prostitntion of women," and provided in subdivision 4 thereof 
that " Every person who shall knowingly receive any money or 
other valuable thing for or cm acconnt of proenring and pUo- 
ing in the custody of another person for immoral purposes anj 
woman, with or without her consent, is punishable by imprison- 
ment not exceeding five years and a fine not exceeding one 
thousand dollars." (See ConsoL Laws, chap. 40 [Laws of 
1909, chap. 88], % 2460, suhd. 4.) 

It is conceded that a trap was laid for the defendant and thai 
although she knowingly received a sum of money on acconnt 
of procuring and placing in the custody of the principal wit- 
ness for the People two women, with their consent, for im- 
moral purposes, the appellant claims as that person did not in- 
tend to make use of them for immoral purposes and did not, 
as a fact, so make use of them, that the crime defined by the 
statute was legally impossible of accomplishment and that, 
therefore^ no crime had been committed. 

The contention is based upon PeopU v, Jaffe (185 N. Y. 
497) and People v. Teal (196 id. 872). In the Jaffe case the 
defendant had been convicted of an attempt to commit the 
crime defined by section 560 of the Penal Code which provides 
that " a person who bays or receives any stolen property, 
• • • knowing the same to have been stolen, • • • 
is guilty of criminally receiving such property." The Court 



of Appeals held that as the property prior to its purchase hj 
the defendant had lost its character as stolen property by hav< 
ing been retahen into the possession of the owner, the convic- 
tion was not warranted. The court said : " The crime of which 
the defendant was convicted necessarily consists of three ele- 
ments: first, the act; second, the intent; and third, the knowl- 
edge of an existing condition. There was proof tending to 
establish two of these elements^ the first and second, but none 
to establish the existence of the third. This was knowledge of 
the stolen character of the property sought to be acquired. 
There could be no such knowledge. The defendant could not 
know that the property possessed the character of stolen prop- 
erty wh^i it had not in fact been acquired by theft." 

In the Teal case the defendant had been convicted of the 
crime of attempted snbomation of perjury. The court stated 
the question presented as follows : " Can a person be convicted 
of attempted subornation of perjury, upon evidence which 
would not support a conviction upon the charge of perjury, if 
the attempt had been successful 1 And held that under the 
language of the statute (Penal Code, § 96) " a person who 
* * * willfully and knowingly testifies * * • falsely, 
in any material matter, * * • is guilty of perjury," as 
the facts in regard to which the defendant attempted to suborn 
a person to make a false affidavit were not material to the 
issues presented in the action by the pleadings as they were at 
the time the false affidavit was attempted to be procured, there 
could have been no conviction of perjury of the person making 
such affidavit, and, therefore, the facts did not sustain a con- 
viction of an attempt to suborn. 

In each of those cases a peculiar statute vras under consid- 
eration and the decisions are not to be extended where the 
reason therefor does not exist. In the Jaffe case the court said : 
" The crucial distinction between the case before us and the 
pickpocket cases, and others involving the same principle, lice 



not in the possibility or impossibility of the commission of the 
crime, btit in the fact that in the present case the act, -which it 
was donbtlesa the intent of the defendant to commit, would not 
have been a crime if it had been consummated." And in the 
Teal case, after referring to People v. Momn (133 N. Y. 254) 
and People v. Gardner (144 id. 119), the court said: "It is 
said that they are anthorities for the doctrine that the qnesticm 
iriiether a person has made an attempt to commit a crime de- 
pends npon the mind and intent of the actor and not upon the 
result of the act. That is quite tme as r^ards the crimes of 
larceny and extortion, which were the subjects of discnasion in 
those cases, and it may be tme in many other instances where 
the law looks only to the intent without reference to result. 
But a different rale has been established as to the crime of per- 
jniy. The statutes declare that materiality of the false testi- 
mony is of the essence of the crime. Witboat it the crime 
cannot be committed no matter what the intent may be." 

The statute under consideration limits the word "know' 
ingly " to the receipt of the money, to the procuring, and to the 
immoral purposes for which the woman was procured ; in obiter 
words, to the intent and the acts and the purposes of the de- 
fendant. She knowingly received the money ; and she know- 
ingly procured the women ; and she intended to and did deliver 
them for immoral purposes, with their consent. So far as the 
defendant was concerned, her act was completed. If the crime 
depends upon the subsequent accomplishment of the ultimate 
purpose, it will be readily seen that conviction would be almost 
impossible and the statute a dead letter. 

Take the present case. The women were procured and de- 
livered to be taken to Seattle to be put into a house of prosti- 
tution. Supposing that the person receiving them had also bad 
the guilty purpose and he and the women bad started ou their 
way and something had intervened to prevent the final accom- 
plishment, a change of heart, a religious conversion of one or 



other of the parties, a railroad accident, a rescue, or an; other 
intermption of the design and purpoa^ would that have affected 
the guilty knowledge and intent and purpose of the procuress 
who had done every act within her power to do, whose connec- 
tion with the transaction had ceased, and make that innocent 
which otherwise would have heen a crime i We do not eo read 
the statiite. It should he interpreted in the light of the evil 
aimed at and no strained oonstmctioa applied to its simple and 
straightforward language. We think that the evidence sustains 
every essential element of the crime. 

3. It is claimed that the treatment accorded to counsel hy 
the court upon the trial tended injuriously to affect the defend- 
ant During the trial the court directed counsel to show cause 
before him on the following morning why he should not be pun- 
ished for contempt Aftw hearing hia explanation the court 
said that he would dispoee of the question at the conclusion of 
the trial and directed the juiy in emphatic language to abso- 
lutely banish from their minds that incident " It is not to be 
the subject of thought for any one of you, and stUl less the sub- 
ject of comment, and it is not to have the slightest weight with 
you in determining what verdict yon shall render in this case 
in the event that the case is sent to you to determine what the 
verdict shall be." The incident was unfortunate, but the con- 
duct of counsel brought it about and he is responsible therefor, 
and not the court A careful reading of this record has im- 
pressed us with the patience and courtesy of the trial court. 
Very wide latitnde was granted to the defendant's counsel, but 
against repeated warnings be persisted in propounding obnoxi- 
ous and immaterial statements thinly di^uised in the form 
of questions which had been ruled out again and again. If 
there was any value in his exception he had it. His persistence 
in continuing a line of questioning against the ruling of the 
court finally reached the point where the court properly felt 
that its dignity and the proper c<mduct of the case required the 



action talwtu We find nothing to condemn, and feel assured 
that the defendant took no harm bj the incident. 
The other matters urged npon oar attention have been ex- 
amined by ns, but we find no reversible error upon this record. 
The judgment appealed from shonld be affirmed. 

IiTOBAHAK, p. J., Lacohlxn, Soott and MiLLXS> 33., coo- 

Judgment affirmed. 



Jul, e, IBll. 


(142 App. Dlr. 8GS.) 


Attorner &t law dlabured for wllUallr flTlng lalae tortlmcmr In 
behalf of a cUent os tb« trial of an action In whldi he had agreed 
to P&7 hia client's ezpenaea In oonilderatlon of a contingent fee. 

It la Immaterial whether or no the attomer waa comet in iLia 
Tlew of the legal effect of hla teatlmonr- 

Pbooebdxito to disbar an attorney. 

Scott, J. : 

The charge against this attorney is that he vas gailty of will- 
ful false Bwearing in his teetimoay in a Municipal Court in 
behalf of a client 

He was attorney for one Bishop, who had been janitor of a 
public school who was dismisaed on charges. Fending the hear- 
ing of the charges Bishop had been suspended without pay by 
the acting president of the board of education, who sent Bishop 
a letter of suspension dated August 6, 1909. This action by 
the acting president was ratified by the board of education on 
September 22, 1909. After Bishop's removal on November 
10, 1909, he began an action, by respondent as his attorney, 
in the Municipal Court for the salary which had been withheld 
during the period of his suspension. In this action it became 
material, or, at least, respondent deemed that it was material, 
to show that Bishop's suspension had been made, or attempted 
to be made, by some person who had no authority to suspend 
an employee of the board, and he accordingly presented him- 



■elf as t witness and testified aa f ollowB : " I am the attorn^ 
for the plaintiff. On October 16tb, 1909, I was present be- 
fore the Committee on the care of buildings, of which Thomas 
3. Higgins is chairman. I had a conversation with Thomas J. 
Higgins at that time in the 'Hall of the Board of Education in 
which Mr. Hi^ns told me that he had sent a letter to Hr. 
Bishop, over his own signature, suspending him without pa^, 
and that becaoae of that fact he is not entitled to any money, 
as he thoDght It was at that time that I made my demand 
for the money claimed herein." This testimony was satisfac- 
torily and indeed conclusively shown to have been false, in so 
far as concerns the statement that Mr. Higgins had told re- 
spondent that he (Higgins) had sent a letter to Bishop, over 
his own aignature, suspending him. Higgins never had sent 
such a letter, and never told respondent that he had sent it. 
The importance and materiality of the evidence, from the 
respondent's point of view, liee in the fact that as no authority 
appeared to be vested in Higgins t<i suspend, if he bad at- 
tempted to suspend Bishop, his act would have been void and 
Bishop would have been entitled to recover salary during the 
period of attempted suspension. It is immaterial whether re- 
spondent's view of the law was correct or not, the important 
fact being that he testified falsely believing that his evidence 
was material and would be helpful to bis client. The respond- 
ent's offense is accentuated by the fact that he had agreed to 
pay all the expenses of Bishop's action against the board of 
education, and that his compensation for his services was, by 
agreement with Bishop, contingent upon the success of the 
action. Some attempt was made to befog the issue by showing, 
by the testimony of Bishop, that the letter of suspension re- 
ceived by him was in fact signed by Mr. Higgins. Not only 
was this wholly immaterial to the cha^e against the respond- 
ent, but the attempt to make the proof totdly failed and left 
Bishop also convicted of false swearing. 



The official referee has found that the charge against the 
respondent has heen Buetained, and a reading of the evidence 
convinces as that no other finding could have been made. In* 
deed, the respondent did not even appear as a witness before 
the official referee to defend himself against the charges which 
accased him, not onlj of official miscondnct as an attorney, 
but of the commission of a felonj. His defense, as outlined in 
the brief filed in his behalf, deals only with the supposed weak- 
ness of the evidence against him, which is strong enough to 
convince ua as well as the referee, and with the suggestion that 
the proceeding against him is inspired by the malice of some 
one, of which we find no evidence. 

The respondent has been clearly shown to have been guilty 
of deliberate false swearing and of being wholly oblivious of 
the duties and obligations resting upon an attorney. He is 
certainly unfit to remain a member of the bar, and must be 

InosAHAif, P. J., CLAitEZ, MiLLXS and Dowluhq, JJ., con- 

Bespondent disbarred. Settle order on notice. 



Tab. IS, 1811. 

C. & H. R. R. Ca 

(1.) TiM:*noiT (w RSBUUiTioiis ow Pnnjo Bbtkc ComauiQM — ^Pmuo 


Where It Is eetabUelied bj eompetent erldence tlwt m ndlroad 
la & treepener In malnUinliis uid operating under n charter long 
expired and moa Ita tralna part of the time at reetrlcted hoora la 
Ttolatlon of an order laaned pnmiant to competent aothorltr, tm- 
po^nc the dnt7 npon the oompanr to aoapend the nmnlns of 
tralna at noon time, amons othen, preanmablr to arold the en- 
danserlng of the achoot children and othen who And It necenary 
to nae the hlshway akms the line of the road, a clear caae of pabUo 
snlaance ti made out 

(2.) Saio — JmiBDiCTion — Onm or Public Cini' Smnca CoioOBstOK. 
Where a railroad ha* Tlolated an order of the Pnblic Service 
CommlMlon, which would aubject It, at the direction of the Com- 
mlMlon to a cItII ault for tSOOO, thla court la powerleaa in a erim> 
Inal proaecutlon to act upon the proof of the alleged riolatlon of 
aald order, alnce that matter concema the cItII conrta, except to 
hold the offlcer or agent procuring, aiding and abetting in ita 
Tlolatlona, It he were a party to thla action ao that Jurladlctlon 
conM be had over hta peraon aa mil aa over the anblect matter ot 
the Inquiry. 

Chasob rioUtion of Begnlstions of Public Service Com- 

Theodore Baumesiter, Esq., for the complainaiit 
Martin Oitligan, Esq., for the defendant 



The defendant, The N'ew York Central and Hudson lUrer 
Bailroad Company, is chained with a violation of the regula- 
tions of the Fahlic Service Commisaion eontained in an order 
dated December 11th, 1908, designated and known as order 
number 745, made such Commission, and duly served upon and 
accepted by said company. 

The directions and reqmremmts of the order are to the effect, 
as follows: 

Okdered. 1. That the New Tork central and Hudson Kiver 
Bailroad Company be and it hereby is directed not to operate 
any freight trains on IXth Avenue, Sorou^ of Manhattan, 
City of New York, during the following hours; On Sundays 
between 10 o'clock A. M. and 12 o'clock noon. On all the 
other days of the week • • • between 11:80 A. M. and 
12:65 P.M. • • •" 

FCTRTHER ORDERED, that this order shall take effect 
inunediately and shall continue in force for a period of two 
years from and after the date of the taking effect of this order. 

FtTRTHER ORDERED, that within five days after ser- 
vice of thia order upon the New York Central and Hudson 
River Railroad Company, the said New York Central and 
Hudson River Railroad Company notify the Public Service 
Commission for the First District whether the terms of this 
order are accepted and will be obeyed." (Laws 1910, Chapter 
480 Sec 23.) 

The specific offense complained of, is that on the l7th day 
of November, 1910, the defendant violated the aforesaid order 
by running, at the direction of one John 3. Loftus, Superin- 
tendent of Freight Yards, an agent and employee of the de- 
fendant company, a south-bound freigjit train of twenty cars 
drawn by steam engine No. 127, at or near 42nd Street, in the 
City and County of New York, at the hour of noon on that 
day when " school children were coming out of the 44d» Street 
School and using that portion of the avenue over which that 



train was operated," as is eatablished by tike evidence of the 
complainant. (See Testimony pp. 7-10.) 

The order alleged to have been violated, prohibited the opera- 
tion of the defendant's trains over and along their tracks on 
Eleventh Avenue, at certain restricted hours on Sundays and 

The order in qnestion was made, as more folly appears from 
the order itself, after a hearing before the Public Service Com- 
miseioD, in which it appeared " that the T^;alations and service 
of the New York Central and Hudson River Railroad Com- 
pasy, in respect to transportation of property in the First Dis- 
trict on its Eleventh Avenue line has been and is in certain 
respects unsafe, unreasonable and improper, and it being made 
to appear that the changes and improvements in the regulations 
and service of the said company * * * are such as are 
just, reasonable, safe, adequate, and proper and ought reason- 
ably to be made to promote the security and convenience of the 

These facts are undisputed by the defendant; and on this 
record the motion for a dismissal must be determined. 

The defendant's counsel contends, among other things, that 
the corporation is not subject to criminal prosecution for a 
violation of the order of the Commission; that a civil action 
only may be instituted to recover the penalty for the alleged 
violation; and that therefore, the motion to dismiss the com- 
plaint on the ground of lack of jurisdiction should be 

Counsel for the defendant also urges " that the commission 
is in a better position to know whether the provisions of its 
orders are being violated than is any other person, and the 
corporation is relieved from the nnwarranted prosecution and 
persecution from erratic or irrational persons. This does not 
necessarily follow: and I doubt the force of such an ai^nment 
It is not based on reason. 



The power of this Court to liold a defendant for trial, and 
the power of the trial court it«elf, under the complaint herein 
must be found, if at all, in the provisions of the Public Ser- 
vice CommiBsione Law, known as Chapter 48 of the Consoli- 
dated Laws (laws of 1910, Chapter 480, sec. 56.) This sec- 
tion provides: 

Sec. 56. POEFEITHRE; PENALTIES. Every common 
carrier, railroad corporation, and street railroad corporation 
and all o£5cerSj and agents of any common carrier, railroad 
corporation or street railroad corporation shall obey, observe 
and comply with every order made by the commission, under 
authority of this chapter so long as the same shall be and re- 
main in force. Any common carrier, railroad corporation or 
street railroad corporation which shall violate any provision of 
this chapter, or which fails, omits or neglects to obey, observe 
or comply with any order or any direction or requirement of 
the commission shall forfeit to the people of the state of New 
York, not to exceed the sum of five thousand dollars for each 
and every violation of any such order or direction or require- 
ment or of this chapter, shall be a separate and distinct ofFense, 
and in case of a continuing violation, every day's continuance 
thereof shall be and be deemed to be a separate and distinct 

" 2. Every officer and agent of any such common carrier or 
corporation who shall violate, or who procures, aids or abeta 
any violation by any such common carrier or corporation of 
any provision of this chapter, or who shall fail to obey, 
observe and comply with any order of the commission or any 
provision of an order of the commission or who procures, aids 
or abets any such common carrier or corporation in its failure 
to obey, observe and comply with any such order or provision, 
shall be guilty of a misdemeanor." 



"Bj the proTisions of this section the imuuice of order 745, 
iriiich is I valid ezerciae of the power of legnlaticHi, a wniTnin s 
of coarse, the constitntioiudity of the etatnte in question, tbe 
public service commission is empowered and authorized to en- 
force compliance with the requirements and directions of said 
order. Bat since tbe alleged offense is statntory, the definition 
of tbe crime and tbe ponishment for a violation of the order 
should be contained, if at all, in the statate under considera- 
tion, and it is there we would expect to find it 

Sabdivision 2 of section 58, makes it a misdemeanor for any 
officer or agent of a corporation to violate, or to procnre, aid or 
abet any violation by a corporation of any provision of this 
statute or of any order of the commission. It is to be noted 
that the statute does not constitute it a roisdemeanoor where the 
corporation violates the order ; but prescribes that in the event 
of a violation by the corporation affected by the order a penalty 
not to exceed the sum of five thousand dollara for each and 
every offense may be recovered in the manner stated in Section 
57 of the Public Service Commission Laws, which provides 
as follows: 

"Sec. 57. SUMMARY PROCEEDIN"GS. Whenever 
either commission shall be of opinion that a common carrier, 
railroad corporation or street railroad corporation subject to its 
supervision is failing or omitting or about to fail or omit to do 
anything required of it by law or by order of the commission or 
is doing anything or about to do anything or permitting any- 
thing or about to permit anything to be done, contrary to or 
in violation of law or of any order of the commission, it shall 
direct counsel to the commission to commence an action or 
proceeding in the supreme court of the state of Kew York in 
the name of the commission for the purpose of having such 
violations or threatened violations stopped and prevented either 
by mandamus or injunction Counsel for the commission shall 


PEOPLE EX RBL 8CHNBIDEtt V. N. T. C. ft H. R. R. CO. 485 

thereupon begin such action or proceeding by a petition to the 
supreme court alleging the violation of and praying for ap- 
propriate relief by way of mandamua or injunction. It shall 
tbereupoii be the duty of the court to specify the time not 
exceeding twenty days after the service of a copy of the peti- 
tion, within which the common carrier, railroad corporation 
or street railroad corporation complained of must answer the 
petition. In case of default in answer or after answer the 
court shall immediately inquire into the facta and circumstance 
in such manner as the court shall direct without other or 
formal pleadings, and without respect to any technical require- 
ment Such other persons or corporations as the court shall 
deem necessary or proper to join as parties in order to make 
its order, judgment or writs effective, may be joined aa parties 
upon application of counsel to the commission. The final judg- 
ment in any such action or proceeding shall either dismiss the 
action or proceeding or direct that a writ of mandamus or any 
injunction or both issue as prayed for in the petition or in 
such modified or other form as the court may determine will 
afford appropriate relief." 

The written complaint or information filed in this case was 
prepared and submitted by counsel for the complainant, Mr. 

An examination of the complaint will disclose that the de- 
fendant named therein is " The New York Central & Hudson 
Biver Railroad Company" a corporation. The allegation in 
the body of the complaint that this company " its servants and 
agents violated the aforesaid order " is not sufficiently specific 
to permit the inclusion, as a party defendant, of any officer of 
the company. Unless the complaint referred to and designated 
the particular defendant or defendants by name, a warrant of 
this Court cannot issue. The warrant must specify the name 
of the defendant, or if it be unknown to the Magistrate, the 
defendant may be designated therein by any name (Code of 



Criminal Procedure, Sec. 152). A fictitious name, with a de- 
scription for the purpofles of identification of the defendant to 
be apprehended was not even designated in the complaint or 
warrant here. For the purposes of determining the motion 
for a dismissal, I must treat the New York Central & Hndson 
Biver Bailroad Company as the only defendant in the 

In the light of the provisions of Section 57, subdivision I, of 
the Public Service Conunissions Law (supra), the action for 
an alleged violation of the order in question against the defend- 
ant is civil and not criminal in its nature; and deals with a 
subject matter over which this Court has no jurisdiction. Bat 
where the person who procures, aids or abets any violation hy 
this defendant, New York Central & Hudson Hiver Railroad 
Company, of the requirements of the order of the commission, 
prohibiting the operation of trains on 11th Avenue, at restricted 
hours, is an officer and agent of the corporation, the conduct 
of such officer and agent comes singularly within the purview 
of subdivision 2 of Section 56 of the Public Service Commis- 
sions Law, which provides that in such cases such officer and 
agent shall be guilty of a misdemeanor, and he may be crimtn- 
ally prosecuted therefor. 

If the complaint in this action had been made against John 
J. Loftus, Superintendent of the Freight Yards of this de- 
fendant-corporation, under the evidence now before me I would 
be inclined to hold him for procuring, aiding and abetting in 
the violation of the order of the Public Service Commission re< 
ferred to in this action. Mr. Loftus' claim, that an oral sus- 
pension by a clerk of the Public Service Commission, and lack 
of intent on his part to violate the provisions of said order, 
excuse his conduct, would be questions for the trial court rather 
than for a committing Magistrate to determine ; and the com- 
mitting Magistrate should not usurp the powers that properly 
belong to the trial tribunal. That there was a public necesaity 



for the operation of trains at the restricted Iioura by reason of 
the work of paving the Avenue making therebj the conditions 
on 11th Avenne, as counsel for the defendant pats it, abnor- 
mal, are extennating circumatances only, and the proper sub- 
ject for consideration by a trial court in its final disposition of 
the case, in the event of conviction against an officer and ag^it 
of the company. 

I cannot consider the minutes of the hearing before the com- 
mission submitted to me by counsel for the defendant as they 
were not offered in evidence at the examination. 

The complainant, Mr. Schneider, has argued and he con- 
tends that the defendant is guilty of maintaining a public 
nuisance, and that the manner and circumstances under which 
this railroad operates its trains and condncts the business of 
railroad traffic is unlawful and a nuisance per ae. 

A public nuisance is defined in section 1530 of the Penal 
Laws (Laws 1909, Chap. 88), as follows: 

" A * public nuisance * is a crime against the order and 
econtony of the state, and consists in unlawfully doing an act, 
or omitting to perform a duty, which act or omission : 

" 1. Annoys, injnrea or endangers the comfort, repos^ 
health or safety of any considerable number of persons, or 

"2. Offends public decency; or 

*'3. Unlawfully interferes with, obstructs or tends to ob- 
struct or renders dangerous for passage, a lake, or a navigable 
river, bay, stream, canal or basin, or a stream, creek or other 
body of water which has been dredged or cleared at public ex- 
pense, or a public park, square, street or highway; or, 

" 4. In any way renders a c<msiderable number of persons 
insecure in life, or the use of property." 

Section 1533 makes the liability for maintaining a public 
nuisance a crime punishable as and for a misdemeanor. 

There must be establiebed by direct or circumstantial evi- 
dence the doing of some unlawful act, or omission to perform 



a duty. This element miut be present ; otherwise the charge 
, must faiL 

The mere miming of freight trains, standing alone, is not a 
pahlic nuisance. Bach a controversy would resolve itself into 
a single question whether the defendant has a le^ right to 
maintain the Btmctnre complained o^ and to operate its trains 
thereon. (Bennet v. L. It. S. R. Co., 181 N. T. 431.) 

The Court of Appeals writing in the Bennet case (supra) 
at page 436 said: 

" The rumble of trains, the clanging of bells, the shriek of 
whistles, the blowing off of steam, the discordant sqaeak of 
wheels in going around the curves, the emission of smoke, soot, 
and cinders all of which accompany the operation of steam cars 
are undoubtedly nuisances to the neighboring dwellings in the 
popular sense, but as they are necessarily incident to the main- 
tenance of the road, they do not constitute nuisances in the 
legal sense, but are regarded as protected by the legislative 
authority which created the corporation and legalized its cor- 
porate operation. Nor does the legal nature of such annoy- 
ances change as traffic increases them in volume and 

That which is authorized by competent legal authority can- 
not in law constitute a nuisance. 

Where it is estabHsbed by competent evidence that a railroad 
is a trespasser, as claimed by the complainant in the case of 
this defendant, which, as he says orally to the court, maintains 
and operates under a charter long expired, and where such 
trains are run part of the time at restricted hours in violation 
of an order issued pnrsuant to competent authority, imposing 
the duty upon the company to suspend the running of trains 
at noon time, among others, presumably to avoid the endanger- 
ing of the school children and others who find it necessary to 
nse the highway along the line of the road, then a clear case 
of public nuisance is made out. In such a oase^ it becomes- 



important to prove the dangers experienced by operating trains, 
the extent of the noise and diacomfort to the residents along 
the line of its traflSc and vicinity, either by the travel of heavy 
cars or by engines, emitting smoke and steam, ringing bells 
and blowing whistles, the damage done to property and that 
conditions have arisen there that are dangerous to the people, 
and what, if any, fatalities and injuries hare been suffered. 
But before considering these charges, I shall require proof of 
the complainant that the defendant, The New York Central 
& Hudson Giver Kailroad Company, has no legal right to 
maintain and operate a railroad upon Eleventh Avenue, at the 
points indicated by him. 

It ia true, as complainant argues, that the defendant should 
not have any greater privileges than those legally authorized; 
nor can it expect any more than any citizen under the law; 
and that aa a corporation it is equally bound to perform its 
every duty, or stand amenable to law for the acts of non-feas- 
ance or malfeasance of its agents and servants. 

No criminal prosecution should be permitted unless the evi- 
dence clearly established the commission of crime. 

It seems that the defendant has violated the said order of 
the Public Service Commission of this district; and for its 
conduct in that regard tbe defendant may be subjected, if the 
commission direct it, to a civil suit to forfeit a sum not exceed- 
ing five thousand dollars. This court, is, however, powerless 
in a criminal prosecution to act upon the proof of the alleged 
violation of said order since that matter concerns tbe civil 
courts, except to hold the ofidcer or agent procuring, aiding and 
abetting in its violations, if he were a party to this action so 
that jurisdiction could be bad over his person as well as over 
the subject-matter of the inquiry. 

The Superintendent of Freight Yards, Mr. Loftus, at whose 
direction, it seems, tbe order was violated, not having been 
made a party, he cannot be held tmder this complaint. A new 



information would Iiftve to be filed if it were sought to reach 

I mnat dismiss the complaint as against the defendant, The 
New York Central & Hadson River lUiltoad Otonpai^, for 
want of joriadiction. 



K»7 10, 1011. 


(1.) OBsnccnox or Bisma bt SxAinM or Vaub ahb Ho mm Okb* 
iwtoi Cttt €¥ Itaw ToBK, Chap. 12, beo. 446. 
The ttneti utd KTenuet of N«w Tork ve hlghwKTSi U>s nM uid 
malntciuuiM of which tha l«KUlatlv« badlM In tho Cltr or lUto 
HUT refnlate hy l*w or ordliiance. 

(1) Sua. 

The atorlns of « waBos lo the hlxhwar !■ k nnlutie»— the prim- 
UT DM of & highway la lor the pnrpOM of pennlttlns tho psaalns 
Uid repaMlns of the pnblle, and It la entitled to the nnobatmcted 
and uniDt«mipted ue of the entire width of the hlshwaj for that 

JoHK J. Fbbscbi, City Magistrate. 

The averment in the complaint charges the defendants with 
imlawfully ohBtmcting and incnmbering a public highway, to 
wit ; Ludlow Street near Delancey Street, "Sew York City, by 
placing their horses attached to vana at the curb therein and 
obetntcting traffic thereby, all in violatioa of Chapter 12, Sec 
446, of the City of New York. 

Upon the arraignment of these defendants they were fully 
apprised of the nature of the complaint charged ^ainat them, 
and each waa advised that a reasonable adjournment would be 
granted to enable him to procure counsel or witnesses, but de- 
fendants demanded an inunediste trial 

The evidence adduced in behalf of the prosecution that 
seems to have sustained the burden of proof by credible testi- 
mony, established that these defendants kept and maintained 
in the public highway and at the curb opposite Uie premises 



No. 108, Ludlow Street in the City and Connty of New York, 
what is popularly known as a stand for the keeping of horses 
and moving vans without the permit or consent of the landlord 
of the premises in question or of the City authorities. The 
uncontradicted testimony of the landlady of said premises con- 
clusively proved that the defendants have kept their horses and 
wagons in said street and in front of her premises against her 
expressed wishes and notwithstanding her repeated protest, for 
npwards of several months. 

In the course of the trial the Court developed the fact that 
each van measured about six feet wide by fifteen feet in length 
and that excluding the horses, the vans themselves, standing as 
was proven in this case, one in front of the other occupied a 
space forty-five feet long by six feet wide along the curb line of 
Lndlow Street, at the point indicated, in the roadbed which 
measures about twenty-five feet from curb to curb, thereby 
diminishing the width of the highway to nineteen feet at that 

The only daim allied to have been made by the defendants 
when ordered to move by the police officer was that " this is a 
free country." 

Aside from the conduct of the defendants which waa dis- 
orderly and which annoyed the peace of the people in that im- 
mediate locality, the case at bar presents an interesting point 
that is of vital interest and which, in effect, generally concerns 
all those who make use of any portion of our public hi^ways 
for a vehicle stand for one bnsineea or another. 

The streets and avenues of this Ci^ are hi^^ways, the use 
and maintenance of which our legislative bodies in City or 
State may regulate by law or ordinance, and such exercise of 
these police powers have been held reasonable police regula- 
tions. Citizens are bound to comply with the direction of the 
legislBture in a valid exercise of police powers. {Health Dept. 
T. Trinity, 145 N. T. 32.) 



Title to the rtreets of New York City are in the City. (/» 
re OUbert El B. B. Co., 10 N. Y. 361). See also Willcox v. 
Bichmond Light & B. Co., 128 N. Y. Supp. 366. 

The Soard of Aldermen of the City of New York in pnr- 
saance of a grant of power by the State Legislature to be found 
in the Charter of Greater New York, (see sec 60, p. 44, Ed. 
3rd.), which confers " power to regulate the use of the streets, 
and sidewalks by foot passengers, animals or vehicles," or- 
dained as provided in an ordinance (supra) in 1903: 

No vehicle shall stop for the purpose of taking or setting 
down a passenger or loading or onloading freight or for any 
other purpose, except in case of accident or other emei^ency, 
or when directed to stop by the police, in such manner as to 
ohdruct any street or erasing." 

By the provisions of this ordinance it does not seem that the 
legislature has infringed on the liberty or the property rights 
of any person within the protection of the constitution, under 
the gnise of the police power. 

Recently, the Supreme Court, has held that ordinances 
affecting streets in the matter of the nse by persons (ticket 
speculators) thereon are valid. (Peo. ex rel. Lange v. Palmit- 
ter. N. Y. law Journal ; D. L. £ W. S. S. Co. v. City of 
Buffalo. 158 N. Y. 266; Frank v. Village of Warsaw, 198 N. 
Y. 463, 469. See also Cohen. Adm. v. The Mayor, 113 N. Y. 

This ordinance was designed to prohibit the interference 
with the free and unincumbered use of public highways by 
the people generally as is their unquestioned and inviolate 

It seems that to license the use of stands would be an orig- 
inal and independent grant in the street, which finds its equiva- 
lent in a franchise, and this would seem to be conferring a 
special privilege derogatory of the homely axiom " equal rights 
to all and special privil^s to none." 



M. a grocer, doing bosinese in the City of New York, waa 
in the habit of keeping his grocery wagon, when not in use, 
standing day and nij^t in the street in front of his store under 
a permit to do so, granted to him by the city, for which an 
annual license fee was paid. When so standing the thills 
were raised perpendicularly and held up by strings. A pass- 
ing ice-wagon struck the grocery wagon and turned it partially 
around, the string holding up the thills gave way, and they 
came down upcoi the sidewalk striking plaiotifPs intestate, who 
was passing thereon causing his death. In an action to re- 
cover damages, held, that the license was issued without author- 
ity (Sec. 86, sub. 4, Chapter 410, Laws of 1882), that the stor- 
ing of the wagon in the hi^way was a public nuisance. 

Mr. Justice Peckham, writing for the Court of Appeals, in 
the Cohen case (gupra) in the very opening sentence laid down 
the law which is applicable and goTems here: He said: 

" The storing of the wagon in hi^way was a nuisance. The 
primary use of a highway is for the purpose of permitting the 
passing and repassing of the public, and it is entitled to the 
unobstructed and uninterrupted use of the entire width of the 
highway for that purpose * * » " 

Even a show case maintained upon the street constitutes a 
public nuisance. (Wells v. City of Brooklyn, 9 App. Div. 

The Court in the Wells case (supra) quotes with approval 
the langnage of Chief Justice Benio in Davis v. Mayor of New 
York, (14 N. Y. 506, 524) in which the Court said: 

" Any permanent or habitual obstniction in a public street 
or highway is a indictable nuisance, although there be room 
enough left for carriages to pass ; and it is not leee so, thou^ 
the thing which constitutes the obstruction is not fixed to the 
ground, but is capable of being and actually is removed from 
place to place in the street." 

At the close of the case at bar one of the defendants urged 



that tbe landlord opposite the moving van street stand had 
given her consent to its maintenance but this was not shown 
on the trial. Even though the defendants would have proven 
this fact, the pennit or consent of the abutting owner could 
not be pleaded aa a defense. 

Again, in the Cohen case, the Court emphasizes this point at 
page 686 in this language. 

" Familiar as the law is on this sabjee^ it is freqnentl; dis- 
r^arded or lost sight of. Permits are granted by common 
councils of cities, or by other bodies, in which the power to 
grant them for some purposes ie reposed, and they are granted 
for purposes in regard to which tbe body or board assiuning 
to represent the city has no power whatever, and tbe permit 
confers no rights upon the party who obtains it. Aa was said 
by Lord EUenbrougb in the caae of Bex v. Jones (supra) the 
law upon the subject is much neglected, and great advantages 
would arise from a strict, steady application of it. This case 
is a good example of its n^ect There is no well-founded 
claim of the existence of a power in the defendant to issue 
such a license. The defendant refers to sections 10 and 27 of 
Chapter 27 of tbe ordinances of 1859. The former provides 
for an assignment by the mayor of a stand where the owner 
of a duly licensed public cart may let it remain waiting to 
be employed, and also a stand where it may remain at other 
times upon certain terma, etc Tbe latter section refers to a 
licensed eartman and provides for storing his cart in front of 
his premises under certain regulations. Neither section has 
anything to do with the case like this. The legislature has ex- 
pressly enacted that the city shall have no power to authorize 
the placing or continuing of any encroachments or obstructions 
fpon any street or sidewalk, except a temporary occupation 
thereof during the erection or repair of a building on a lot 
opposite the highway. (Consolidation Act. Section 86, snb. 
4, pp. 25, 26 ; People ex rel. O'BeUly v. Mayor, etc., 69 How. 



Pr. 277; Ely v. Mayor, etc. v. Camj^U. Comr. etc, Id. 83; 
Levery y. Hannigan, 20 J. & S. 463)." 

" The owner of this wagon was not a cartman, nor was the 
wagoD need as a pablic cart, bat only as a means to enable the 
grocer to transact his own private bnsiness. He acquired no 
right by virtae of the license to store his wagon in the street, 
and in doing so he was clearly gnilty of maintaining a pnblio 
nniaance. To be sure the l^al power to grant a license to 
obstruct the street was, by the legieletnre, withheld from the 
defendant, yet, nevertheless, it did grant jost such a permit 
and took compensation on account of it In thns doing, the 
city became a partner in the erection and continuance of such 
nnisance. It was a nuisance, not by reason of the manner in 
which the thills were tied up bnt because the wagon was stored 
in the street. It was not a mere negative attitude which the 
defendant adopted, such as would have been the case had it 
simply acquiesced in the manner in which the street was used. 
In this case it not only acquiesced in such use, but it actually 
encouraged it by making out and delivering a license to do it, 
and it received directly and immediately from the owner of 
the wagon a compensation for the erection and maintenance 
of a nuisance under the authority of such license. Under such 
circumstances the defendant must be held liable the same as 
if it had itself maintained the nuisance, for the owner of the 
wagon was nothing more than an agent through whom the 
defendant did this unlawful act. (Irvine v. WooS, 51 N. T. 

Public property cannot be taken for private nse, any more 
than can the constitutional inhibition in the Bill of Bigbta 
that private property cannot be taken for public use without 
just compensation be ignored and treated as a dead letter. 
(City of New Yorh v. Bice, 198 N. Y. 124, 128.) 

In the matter of the application of (3eoi^ Fiegal for a 
writ of lifandamus (36 Misc. 27) to compel the Deputy Police 



CoDuoiaBioner to remove obstruction from a certain street, tbe 
Supreme Court through Judge Gaynor, now the Mayor of tbe 
City of New Tori, wrote with directness and force on the 
principles which are applicable here. In directing the isaa- 
ance of the writ, he said: 

" On September 5th, 1899, the Municipal Assembly passed 
an ordinance that licensed vendors and peddlers be permitted 
to stand with their wagons and display and sell their wares on 
both sides of Seigel Street in the road or carriage way between 
Graham Avenue and Broadway in Brooklyn Borou^ every 
day excepting Sunday until midnight. The Mayor approved 
such ordinance, and the said street has been so used ever since. 

It is too well known to need the citation of authorities that 
there is no power in the Municipal Assembly, or in the City 
Government in all its departments combined, to appropriate 
a public street for such a use. This depends on general prin- 
ciples of law which are familiar to lawyers and students of 
government But in addition tbe Charter of the City Con- 
tains an express prohibition against the Municipal Assembly 
passing any ordinance authorizing the placing or continuing 
of any encroachment or obstruction upon ai^ street or side- 
walk except tbe temporary occupation thereof during the 
erection or repairing of a building on a lot opposite tbe same. 
(Sec. 49, sub. 3.) 

The ordinance in question is void, and it is the duty of the 
respondent to clear the street of the obstructions." 

Under the circnmstances, I must adjudge tbe defendants 
and each of them guilty. 

The sentence of the Court is that tbey and each of them 
shall be fined the sum of ten dollars and in default of payment 
thereof, each defendant shall stand committed to the Ci^ 
Prison for a period of ten days. 



Feb. 1011. 


(142 App. DiT. 698.) 

(1.) ExTuornoH — PnTuoAi. Pusdtck of CmmiAL nr Ormx Btaib 

AT Tna or Cam Eeuatrui. 

A fnsltlTe from Jottice vtU not be extradited onleM he was plir*- 

Ically preaent In the forelKD at&te at the time ot the oommlaBloii 

of the alleged crime. Extradition will not be granted on the 

theory of a oonatmctlve preaence. 

(1) Sauk — SumoiBifOT of Foaxioir Ivdictmeht. 

Onr conrta will not determine the lufflciencr of a foreign Indict- 
ment under which extradition la demanded, that being a matter 
ioleir for the coorta of the other State. 

(S.) Saicv— Fboof NionaAiT. 

Brldence in an application tor the sEtradition of a fugitive from 
Justice examined, and held, to show that the tngitlTe waa actuall7 
present in the foreign State at or about tlie time of the eom- 
mlHlon of the orlme aa charged In the indictment, ao that Ua 
application for discharge on writ or haheaa eorpna ahonld be 

(4.) Saiu— Habkas Cobfub. 

The courts will not Interfax on haheaa oorpua and discharge 
a fugitlTO from Jnstice upon technical grounds, ualeBa it be clear 
that the Ooremor'a action In taauing a warrant (or extradition 
plalnlj contraTenea the law. 

Appeal b^ the relator, Charles M. Meeker, from an order 
of the Sapreme Court, made at the New York Special T^na 
and entered in the office of the clerk of the county of New 



York OB the 18th day of June, 1910, diBinissuig a writ of 
habeas corpus and remanding the relator to ciiBtody. 

George P. Breekenridge, for the appellant. 

Bobert 8. Johnstone, for the respondent. 1 

DowuNo, J. : 

The relator was indicted by the grand jury of Dallam county, 
Tex., at the March, 1910, term of the District Court of said 
county, for a common-law conspiracy claimed to have been 
entered into by him on or about January 36, 1910, with W. 6. 
Kichey and H. L, Perkins to defraud George N. Mattingly out 
of the sum of $2,400. Briefly stated, the acheme into which 
these three parties were charged to have entered was, that 
Perkins was to locate himself in London, England, and adver- 
tise himself as president and general manager of the L<nidoQ 
Commercial Banking Company, S. A., and represent to the 
public that the company was incorporated for $1,000,000, with 
paid-up capital to that amount, and was a solvent and reliable 
banking instituticu ; that Meeker was to make, execute and 
draw drafts and checks on said company and indorse and de- 
liver the same to Kichey, and that Bichey would sell the same 
to Mattingly upon representations that the company was solvent 
and had a paid-up capital of $1,000,000, and that Meeker and 
Richey each had large sums of money on deposit therein, sub- 
ject to the payments of said drafts and checks, such deposits 
amounting to not less than $2,400 ; that Bichey would request 
Mattingly to communicate by cable widi said company, where- 
upon Perkins would verify the statement made by Bichey ; that 
all of such statements and representations made in pursuance 
of the conspiracy vrere false and untrue. 

It vras charged in the indictment that the conspiracy was 
actually accomplished by means of four drafts or bills of ex- 



change made by llleeker to his own order aggre^ting £500 
and indorsed and delivered by him to Kichey and by Ricbey 
tamed over to Mattin^y, whereupon the latter, having received 
the cablef;ram from Perkins theretofore agreed upon anad 
having been shown by Ricbey a cablegram purporting to have 
been sent to Ueeker by the company stating that the drafts 
were good, paid over to Richey, in pursuance of said con- 
spiracy, the said sum of $2,400 in return for said drafts, 
which, of course were never honored. It was further charged 
in the indictment that the conspiracy in question was entered 
into in the county of Dallam, State of Texas, and that the sum 
of $2,400 was paid over by Mattingly to the conspirators in said 

Tbe relator being in the State of New York when the indict- 
ment was found, application was duly made by the Governor 
of tbe State of Texas to the Governor of tbe State of New York 
for the rendition of the relator as a fugitive from justica 
Upon that application a hearing was bad for the purpose of 
determining whether as a matter of fact tbe relator was a fur- 
tive within tbe meaning of the extradition laws, the Oovemor 
being called upon to determine that as a question of fact. 
(Ex parte Beggel, 114 U. S. 642; Roberta v. BeUly. 116 id. 
80.) That question depended for its solution upon whether 
the relator was physically present in tbe State of Texas at the 
time of the commission of tbe alleged crime (People ex rel. 
Corkran v. Hyatt, 172 N. Y. 176; affd., sub nom. Hyatt v. 
Corkran, 188 U. S. 691) ; for extradition will not be granted 
on tbe theory of a " constructive presence." (Munaey v. 
Chugh, 196 U. S. 364.) After the hearing had been con- 
cluded, the Governor determined as a matter of fact that tbe 
relator had been vritbin the State of Texas at the time of the 
acts complained of and was a fugitive from justice within the 
meaning of the law; and, therefore, he issued bis warrant for 
the relator's arrest and surrender to the State of Texas. The 



warrant wag directed to the poUce commiasioner of the city of 
New York and the relator, having been taken into cnatody 
thereunder, sned ont a writ of habeas corpus, as the return to 
which the police conuoissioDer returned the Oovemor's warrant 
as the canae of detention. This return was traversed hj the 
relator, who denied that he was a fugitive from justice of the 
State of Texas and averred that be was not within the said 
State on the 26tb day of January, 1910, the day mentioned in 
the indictment. The writ having been diamiesed, the present 
appeal ia taken from such diamissal. 

The sufficiency of the indictment against the relator ia at- 
tacked, but it seems well settled that its sufficiency as a charge 
of crime ia a question to be determined solely I^ the courts of 
the demanding State. " It is believed that there ia no caae in 
which a court has on habeas corpus discharged a fugitive from 
custody on a rendition warrant on the ground that an indict- 
ment accompanying the requisition did not constitute or con- 
tain a sufficient charge of crime." (2 Moore Eztr. 1030 ; Peo- 
ple ex Tel. Hamilton v. Police Comr., 100 App. Div. 483 ; 
Pierce v. Creecy, 210 U. S. 387, 404.) 

The Governor of the State of New York being called upon to 
satisfy himself that the person demanded is a fugitive from 
justice, so determined after a hearing at which the following 
facts appeared: The relator admitted that he knew Ferkina 
and Richey and testified that in January, 1910, he resided with 
his family in the boron^ of Brooklyn, city of New York, where 
he had lived for nearly two years, having formerly been a resi- 
dent of Boston, and some ten years before a resident of Texaa. 
On January 15, 1910, he left New York city on a western trip 
in the course of which he went to visit Richey, with whom he 
had been acquainted for some two years, and who then lived at 
Clayton, N. M. The day of his arrival at Clayton he fixes as 
Monday, January twenty-fifth, and while he waa there he spent 
some time in conversation with certain people who had property 



and were going to engage in an enterprise of some bind. Wliile 
there he went to a ranch in N'ew Mexico, owned by one Eran^ 
situated some eeven or eight miles from Clajton. He spent 
four days in all that State. He denied that he had ever 
been in tbe State of Texas during that trip, or that he had ever 
gone to Tezline, T^ or met any one there. 

It appears that Tezline, where the transactions complained 
of took place, is just over the New Mexico border, in the State 
of Texas, the distance from Clayton being about ten miles. 
On cross-examination he was shown a memorandum book kept 
bj bim in bis own handwriting, wherein he made entries from 
day to day, showing his movements dnring his trip. Therein 
was an entry under date of Friday, January 22, 1910, in part 
as follows: " Ar. Clayton 2 a. u., Hotel Ekland for room and 
breakfast. W. S. R. pd. for it and took me to bis bouse with 
baggage. Drove to Texline, Tex., a. 1£." 

He stated that when he was in Clayton he talked with Mr. 
Eichey and other parties with reference to the organization of 
a bank there, and these drafts in question were issued for the 
purpose of being discounted and receiving money to organize 
the bank; that was his understanding of tbe situation. He said 
to Richey that he, Meeker, would have to have them indorsed 
to satisfy his bank. He thought that tbe entry in bis book 
mi^t be incorrect, because they were driving to look at land 
and they were oat toward tbe Texas line, perhaps near it, but, 
not being familiar with the exact line, he did not know whether 
be bad actually reached it or not. 

Affidavits on behalf of the State of Texas were presented to 
the Governor, including those of W. J. Clark, postmaster at 
Dalhard, Dallam county, Tex.; C. S. Bingham and D. W. 
Smith, both of tbe same place, all of whom swore that Meeker 
was in Dalhard, Tex., on January twenty-second. 

O. T. Toombs stated that on January 24, 1910, be bad an 
interview with Bichey, wherein the latter, who was his tenant. 



8&id that he and Meeker had joat come from or irere just going 
to Tezline to raise money through the bank there and that he 
would soon have the money with which to pay the rent. Meeker 
denied this, although he admits that he was present at a conver- 
sation betweoi Toombs and Richey when Toombs demanded bis 

R. S. Miller, who was personally aoqaainted with both 
Kicbey and Meeker, swore that on January 23, 1910, Ricbey 
said to him in Meeker's presence and hearing that he and 
Meeker had jiist been down to Texline, Tex., and Meeker did 
not deny the statement. All of these statements in the various 
affidavits are denied by Meeker. 

Bernard McConville, a police officer of New York city, testi- 
fied that he made the arrest of the relator and saw him searched 
and the memorandum book referred to taken from bis posses- 
sion. Relator declined, at first, to make any statement in the 
absence of hia attorney, whereupon Walter H. Rossell, a private 
detective, asked him, " are you aware that Mr. William S. 
Richey has been arrested down in Tezline for passing these 
drafts on the Bank of Tezline 1 " To which the relator re- 
plied : " I know all about that I was present with Mr. Richey. 
It was a perfectly legal transaction and Mr. Richey will be pre- 
pared to fill hia contract and meet any drafts given by them 
to help carry out the transaction if they will only have 

Walter H. Russell testified that relator said to him after hia 
arrest that he knew what happened, and that he was with Mr. 
Richey, and that these things would be met. Upon the hearing 
on the return to the writ of habeas corpus, the identity of the 
relator was proven and the latter npon examination testified 
that on January twenty-second, the first day he was in Clayton, 
he bad gone on a ride with Richey, inspecting property, in the 
course of which they passed through no towns of any couse- 



qaence, bat after tbe ride was nearly over, Bicbey a^ed lum 
if he realized that he had been in a Tezaa city. 

It is plain from the purport of the qaestiona and of the an- 
swers thereto, as well as from the affidavit of Bichey, that this 
city was Tezline. 

Belator claimed that he did not leave the bnggy at any time 
during the ride, and that he had no transactions with any 
bank in Tezline during the time that he was there. On croes- 
examination he admitted drawing the drafts in qaestion and 
giving them to Ricbey some time between Jannary twenty- 
second and January twenty-eighth j for them he received from 
Ricbey $270 in cash, and a check which he finally recollected 
was drawn by George N. Mattingly on the Bank of Tezline^ 
for an amount he conld not remember, payable to Rickey's 
order, indorsed to the relator and by him sent to hia office at 
120 Liberty street. New York city. 

The affidavit of Ricbey was received in evidence wherein he 
eaid that on January 23, 1910, be took Meeker driving in a 
buggy to give him a general idea of the country, and in the 
course of their drive they passed through the town of Tezline, 
but neither of them alighted therein. Edith Ricbey swore that 
Meeker and Ricbey left on the drive in question and did not 
return therefrom until the afternoon. 

0. P. Easterwood swore that Mattingly had said to him on 
April 10, 1910, that he did not know Meeker, had never seen 
him at Texline, bad never conversed with him, and if he was 
in Texline Mattingly did not know it to his own knowledge, 
although he believed he had some circumstantial evidence tend- 
ing to show that Meeker had been in Texline in January, 1910. 

John W. Lanier swore that he saw relator in Clayton, N. IL, 
on January 25, 1910, and went with him to Des Moines, N. H., 
in tbe afternoon of that day, Meeker returning the next after- 

Tbe only fair conclusion that can be drawn from all this 



teetimoo; is that Heeker, although he had at first denied ever 
having been in Texline, and admitting the same only after being 
confronted with his own diary, was actually in Teriine, at 
least on January 22, 1910, if not on other occasiona. 

He was with Ricbey in Texline at the time of the commission 
of the offenses in question, and during the accom])lishing of 
the purposes of the conspiracy, for the indictment is not limited 
to the date of Jannary 26, 1910, bnt chaiges the commission of 
the offenses on or about that date. He admits making the 
drafts by means of which the fraud was committed, and re- 
ceived money from Eichey therefor, together with a check 
drawn by the party defrauded, which he mailed to his New 
York office. Upon these facts it seems clear that the writ was 
properly dismissed. 

In Matter of Hoffatot the Governor of the State of New York 
had before him a requisition for the surrender of a person in- 
dicted for conspiracy on a specific date alleged in the indict- 
ment, being Jane 8, 1908. There was no proof that the person 
was within the State of Pennsylvania, the demanding State, on 
that date, but there was evidence that he had been within that 
State on May twenty-eighth. The Qovemor held that upon the 
trial the precise date alleged in the indictment would not be 
material, and that the State could prove the commission of the 
crime at a different date; that in conspiracy cases in particular 
the proof was generally circumstantial and consisted of various 
acts and circumstances from which the unlawful agreement con- 
stitnting the conspiracy could be inferred, and that the proof 
ordinarily extended to acta committed through a considerable 
period of time, the precise date being frequently difficult to 
determine; he held that since Hoffstot was in the State of Penn- 
sylvania during the period over which the conspiracy extended, 
and since there were circumstances justifying the inference that 
acts were committed while he was in the State of Pennsylvania 
which mi^t be considered to have had some relation to the 



conspinu^, he wis extraditable. (N. Y. L. J. May 24, 1910.) 
In siutaming the decision of the Governor, Jadge Holt 
said : " The pronmon for the extradition of criminalfl is essen- 
tial to the effici«it administration of criminal justice. When 
an indictment and the leqniaitioa papers issued bj the Gov- 
ernor of the demanding State are regolar and sufficient npon 
their face^ and when there is some evidence which, althon^ 
not of a very satisfactory kind, is atiffident to satisfy the Gov- 
ernor of the surrendering State, and he has issued his warrant 
for extradition, it is well settled that the judiciary should not 
interfere on habeas corpos and diacharge the prisoner npon 
technical grounds nnlesa it is clear that the Oovemor's action 
in issning the warrant plainly contravenes the law." (Bx parte 
Eoffstot, 180 Fed. Bep. 240.) 

The order appealed from must, therefore, be aEBrmed, with 

Inob&ham, F. X, McLauokun, Clajckb and Mnmn, JJ., 

Order affirmed. 


tbe: pboplb v. fuch& 

Feb. leii. 


(71 HIec. S».) 

(1.) AsBST— SFOEDtKe AinoHOfliLC — PiKLnavAnr CovPLAcn^-MiTST 
Staib that BzoiflanB Sped was M^jsTAimst roi Cdtaik D]b> 


An Information for violation of the Motor Vehicle Law, which 
Btatea that the defendant was drirlng at a rate of apeed exceeding 
thirty nllea an hour, to wit, at a rate of thlrty-flre miles an hour, 
without the additional itatement that such speed waa maintained 
tor a distance of one-fourth of a mile, chargea no crime. 

Bemble, If the affldavlt or deposition taken upon the Information 
br the JuBttce U full enough to perform the function both of an 
Information and a deposition, It will glre the court Jurladlctlon 
notwithstanding omlaalona and defects ta the Information. 

(S.) 8ahb— Plea IiXMITed to Faots Chasoid. 

A plea of guilty Is limited to the Information; and, If the In- 
formation charges no crime, the plea will not prevent the defend- 
ant from raising that objection for the first time on appeal. 

Appeal from a conviction in a court of special sessions. 

Anthony H. Henkel, for appellant. 

Charles N. Wysong, district attorney, for respondent. 

Nibmanh, J. Thia is an appeal from a judgment of convic- 
tion, rendered againat tbe defendant at a court of special aes- 
siona held in tbe town of North Hempatead, Naaaau county, for 
an alleged violation of tbe Motor Vehicle Law. The defend- 
ant has raised a number of objections to the validity of tbe 
judgment, but it will only be necessary to consider two qaeB- 



tions: Firat, Is the information enfScientt Second, Did the 
defendant hj his plea of guilty preclude himself from chal- 
lenging upon this appeal tlK sofficienc; of said information ! 

1. The information in this case has the same joriBdictional 
defect aa that pointed oat hj me in the opinion filed daring the 
present term in the case of People, etc v. Payne & Webb, (post, 
72)* namely, that it does not charge any specific violation of the 
atatate (Laws of 1910, chap. 374, g 287), either in that the 
defendant was driving his aatomohile carelessly and impru- 
dently or at a rate of speed endangering the property or the 
life or limb of any person. The mere statement in the informa- 
tion that he was driving at a rate of speed exceeding thirty 
miles an hour, to wit, at a rate of thirty-five miles an hour, 
without the additional statement that such speed waa main- 
tained for a distance of a fourth of a mile, is not presumptive 
evidence of driving at a rate of speed which is not careful and 
prudent. It follows, therefore, that no crime is charged in the 

In considering the sufficiency of the information in this case^ 
I have also examined the affidavit or deposition taken upon the 
information by the justice and find that it does not supply or 
cure the omissions and defects in the information. If an afiG- 
davit or deposition ia full enough to perform the function both 
of an information and a deposition, i. e., if it contain an alle- 
gation that some designated, specific crime has been committed, 
it would be sufficient to give the court jurisdiction. People ex 
rel Livingston v. Wyatt, 186 N. T. 383, 380, 895. 

S. The defendant's plea of guilty cannot affect the disposi- 
tion of this case. His plea was limited to the offense aa charged 
in the information, i. e., that be exceeded a speed rate of thirty 
miles an hour. This admission was no stronger than the 
charge and, in itself, constituted no admission of a violation 
by him of the statute ; because it waa not coupled with an ad- 

• Poat XXV N. T. Crlm. 611. ~~ 



mission that he maintained said rate of speed for e distance 
of a fourth of a mile. Xeither the information nor the plea 
thereto established anj violation of the statute As the in- 
fonnation did not charge a crime, the court acquired no juris- 
diction to hear and determine the case. See cases cited in 
People V. Payne & Webh, supra; also People ex rel. Sandman v, 
Tuthill, 79 App. Div. 24, 26 ; People ex rel. Sampson t. Dun- 
ning, 113 id. 35, 41; Sherwin v. People, 100 N. T. 351, 355, 
364 ; People v. Zahor, 44 Misc. Bep. 633, 639 ; Allen v. Hogan, 
170 N. Y. 46, 51; People v. Hayes, 66 Misc. Hep. 606. A 
plea of guilty but admits the truth of the averments ; it is an 
admission of all the facts charged in the indictment and the de- 
fendant by such plea but confesses himself guilty in manner 
and form as chai^d in the indictment ; and, if the indictment 
charges no offense against the law, none is confessed, and such 
plea does not prevent defendant from attacking the indictment 
as charging no offense. Whether facts charged in the indict- 
ment constitute an offense is left open to he decided by the 
court. State v. Watson, 41 La. Ann. 598 ; State v. Walker, 
22 id. 425; Grossman v. Oakland, 30 Or. 478; 86 L. R. A. 
598, 615; Fletcher v. State, 12 Ark. 169 j Crow v. State, 6 
Tex. 334; State v. Levy, 119 Mo. 434; 24 S. W. Eep. 1026; 
Arbintrode v. State, 67 Ind. 267 ; 1 Bishop New Crim. Pro. 
(4th ed.), § 788, subd. 2; Wharton, Cr. PL & Pr. (9th ed.), 

A plea of guilty to an indictment is no bar to a motion in 
arrest of judgment based upon the ground that the facts stated 
in the indictment do not constitute a crime. Code Crim. Pro. 
%% 331, 467; People ex rel. Schneider v. Hayes, 108 App. Div. 
6, 8. Indeed, the coort may, on its own view of any such de- 
fect, arrest the judgment without a motion. Code Crim. Pro., 
§ 848. 

A plea of guilty to an information can stand on no higher 
groond than a plea of guilty to an indictment. There can 



be DO valid judgment rendered upon an information which 
does not state facta constitnting a orime any more than apon 
an indictment which is open to this objection. In both in- 
etancea the court acquires no jnrisdiction to render a valid 
judgment. It cannot be contended that the defendant hj 
his plea of gailty has waived the right to insist upon this 
appeal that the information waa insufficient to charge a crime. 
The fundamental question that the information does not cbai^ 
any crime can be raised for the first time on appeal ; and the 
court will, in snch case, ex mero moiu, take notice of such de- 
fect. Hughes, Criminal Law & Fr., § 2847. It is provided by 
section 764 of the Code of Crminal Procedure that after beai^ 
ing the appeal the court must give judgment without regard to 
technical errors or defects which have not prejudiced the sab- 
atantial rights of the defendant; and, if the defect here com- 
plained of were a mere technical defect, instead of one that 
is fundamental and jurisdictional, it would be the duty of 
the court to disregard it ; but it is also provided by said section 
that the court may, according to the justice of the case, affirm 
or reverse the judgment in whole or in part ; and, in the exet- 
cise of thia power, the court should not hesitate to reverse a 
judgment which is wholly unsupported by an information or 
deposition containing a l^al charge against the defendant of 
any criminal offense. When it ia shown that the conviction 
and sentence are ill^al, it is the plain duty of the court to 
satisfy the requirements of justice by reversing the judgment 
and relieving the defendant from the penalty imposed there- 
under. Sherwin v. People, 100 K. Y. 851, 355, 364. 

It follows, therefore, that the judgment of conviction ap- 
pealed from should be reversed and the fine of the defendant 



Teb. leil. 


(71 Mtoc. 72.) 

An Infonn&tloii lor violation ol the Motor Vehlole Law wUcli 
refers to a chapter of the laws b? a wrong number li not w mis- 
leading as to entitle the defendant to Ita dlimlBaal, where the 
name of the law and the date of Its pauage are aUted. 

An Information which merely atates In euhatuice that the d^ 
f«ndantB were driving on a public highway not within as Incor* 
porated village or city at a rate of epeed exceeding thirty mllea 
an honr, to wit, at a rat« of apeed of forty miles an hour, without 
stating that the defendanta were driving careleMly and Imprud- 
ently, or exceeding a speed of thirty milea an hour for a distance 
of one-fonrth of a mile, charges no crime; and upon appeal from 
a Judgment of conviction the Judgment should be reversed and the 
fine of the defendants remitted. 

.) Sak^-Wekh OSJBOnOlTB Waitid. 

By proceeding with the case after the denial of their motion to 
dismiss the Information, the defendants did not in anch case waive 
their right to maintain their objections to the sufficiency of the 

Apfkal from a conviction in a justice's court. 

John J. Kvhn, for appellants. 

CharUa N. Wysong, district attorney, for respondents. 



NiXKANir, J. : 

This 18 an appeal hy the defendants from a jndgment of con- 
viction for misdemeanor, entered against each of said defend- 
ants in the joatice's court for the town of North Hempstead, 
Nassau county, N. Y., on the 28th day of November, 1910. 

The charge made against the defendants was an allied 
violation of section 287 of chapter 374 of the Laws of 1910, 
being part of the Highway Law, and designated " Motor 
Vehicles." The defendants were arrested upon separate war- 
rants issued upon separate information^ but the two cases 
were tried together. 

The defendants made a motion at the opening of the case 
to dismiss the informations upon the ground of insufficiency. 
This motion was overruled and an exception duly taken by 
each of the defendants. 

This appeal presents two questions: Firtt, Is the reference 
to the statute contained in the information su£Bciently aocur> 
ate to designate or point out what provision of law has been 
violated ? Second, Does the information state facts showing 
the commission of an offense within the provisions of the 
statute ? 

Before discussing these two questions, a reference to the old 
and the new statute concerning the operation of motor vehicles 
on a public highway will be necessary. 

Article XI, section 291, chapter SO of the Laws of 1909, 
constituting chapter 25 of the Consolidated Law^ made the 
following regulations : " Speed permitted. No person shall 
operate a motor vehicle on a public highway at a rate of speed 
greater than is reasonable and proper, having regard to the 
trafSc and use of the highway, or so as to endanger the life or 
limb of any person, or the safety of any property; or in any 
event on any public hi^way where the territory contiguous 
thereto is cloeely bnilt up, at a greater rate than one mile in 
six minntes, or elsewhere in a city or village at a greater rate 


THE PBOE^^ r. PATNB BT AL. fil3 

tban <me mile in four minutes, or elsewhere outside of a city. 
or village at a greater rate than one mile in three minutes; 
subject, however, to the other provisions of this article." 

Said article 11 of chapter 30 of the Laws of 190d was re- 
pealed bj chapter 374 of the Laws of 1910, by inaerting in 
place of said article 11 a new article 11, in which, hy section 
387, the speed and manner of operating a motor vehicle on the 
public highway was regnlated as follows: "Speed permitted. 
Every person operating a motor vehicle on the public high- 
ways of this state shall drive the same in a careful and prudent 
manner and at a rate of speed so as not to endanger the prop- 
erty of another or the life or limb of any person; provided, that 
a rate of speed in excess of thirty miles an hour for a distance 
of one-fourth of a mile shall be preeomptive evidence of driv- 
ing at a rate of speed which is not careful and prudent." 

It will be seen, by a comparison of the forgoing sections, 
that the arbitrary provisions as to the speed limit fixed by the 
Laws of 1909 were entirely eliminated, but the duty placed 
upon every person operating a motor vehicle on the public high- 
way to drive the same in a careful and prudent manner was 
retained, and a provision was added that a rate of speed in 
excess of thirty miles an hour for a distance of one-fourth of 
a mile shall be presumptive evidence of driving at a rate of 
speed which is not careful and prudent 

Taking up now the first question: An examination of the 
informations discloses that they are on a printed form applic- 
able to the old taw, which was sought to be altered to cover 
the new law. The informant, to indicate the section of the 
present statute, has, by interlineations and corrections, at- 
tempted to show that the defendants have violated the new 
statute, section 287 of chapter 374 of the Laws of 1910. Had 
the informant stricken out the words " subdivision 1 of " in the 
information against the defendant Webb, the reference to the 
preaent statute would have been sufficiently apparent to he 



plainly understood, but, even as it ia, it is fairly comprebenm- 
ble. And so in tbe information against Payne, tbe insertion 
of tbe wrong cbapter, that is, 375 instead of 374, was not anffi- 
cientlj misleading, in view of tbe reference to tbe date of the 
passage of tbe present act These inaccnracies in the informa- 
tions were not sufficient groimds for a dismissSLl of the same, 
for it is well established that an information need not be drawn 
with the same technical accuracy as an indictment The same 
strictness in indictments or informations in courts of record 
has been held unnecessary in informations or complaints in 
justice's courts and other courts of inferior and limited juria- 
diction. People v. Robertson, 3 Wheel C. C. 180 ; People v. 
Pillion, 78 Hun, 74 ; Commonwealth v. Keenan, 139 Mass. 193 ; 
Keeler v. MiUedge, 24 N. J. L. 145 ; Bartb v. State, 18 Cona 

As to the second question: The informations do not all^e 
that tbe def^idants were driving their automobiles carelessly 
and imprudently or at a rate of speed endangering the proper^ 
or the life or limb of any person. It is merely stated, in sub- 
stance, that tbe defendants were driving on a public highway 
not within an incorporated village or city at a rate of speed 
exceeding thirty miles an hour, to wit, at a rate of speed of 
forty miles an hour. This is obviously no violation of tbe 
statute, as tbe informations have failed to charge the defend- 
ants with a violation of either of the essential provisions of 
the statute, namely, that tbey were driving carelessly and im* 
prudently or that tbey were exceeding a speed of thirty miles an 
bour for a distance of one-fourth of a mUe. 

Tbe all^ation of the rate of speed in excess of thirty miles 
an hour is insufficient unless coupled with an allegation that 
such rate of speed was maintained for a distance of one-fourth 
of a mile. A man might drive an automobile at a rate of speed 
exceeding the statutory limit for an ei^tb of a mile, or any 
fracti<m less than tbat fixed l^ tbe statute, and yet that would 



not be pTeaamptive evidence of carelessnesa and impradence 
on bis part. If the defendants vere to be charged with care- 
less and imprudent driving irrespective of the rate of speed 
employed, the facts upon which such a charge was predicated 
should hare been briefly and specifically averred. If the charge 
were based upon the rate of speed, it would be sufficient that 
a rate of speed in excess of thirty miles an hour waa maintained 
for a distance of one-fourth of a mile, aa this would have been 
presumptive evidence under the statute of a violation thereof, 
and would have put defendants upon their proof, '-..~^ui| 

While the information, complaint or affidavit filed in a jus- 
tice's court may be inartificially or loosely drawn, yet it mnat 
set forth facts with sufficient definitenesa to show that the per- 
eon accused has violated the law; and the allegation must be 
sufficiently specific to apprise the accused as to what provision 
of I&w he has violated, so that he may be fully and distinctly 
informed of the charge which he has to meet. The accusation 
cannot be made by inference ; and, while it need not be in any 
particular form or set of words, there must be at least a sub- 
stantial statement of the particular offense charged. People 
V. Jamea, 11 App. Div. SOT; People v. Pillion, 78 Hun, 74. 

There being in the informations nnder discussion an entire 
absence of any atatement of facts showing a violation of the 
said statute, the defendants could not be called upon to make 
any defense, and the motion to dismiss said informations 
shonld have been granted 

By proceeding with the case after the denial of their motion 
to dismiss the informations, the defendants did not waive their 
rig^t to maintain their objections to the sufficiency of the in- 
formations. The informations not having stated facts showing 
the commission of a crime by the defendants^ no jorisdiction 
waa acquired by the justice to hear and determine the case. 
Hewitt V. Newburger, 141 N. T. 538 ; People ex rel. Perkins 
V. Moes, 187 id. 410; Kranakopf v. Tallman, 88 App. Div. 



879. The jndgmaita a|^iMled fnnn abonld be lerersed as to 
both of the defiGodants and their finoa remitted. 

Jadgmente of courictioti Tereised and the fines of defend- 
ants remitted. 

Judgments ronned. 



T»b. IBll. 


Tb« proTlaloiui of McUon 14E8 ol the Conaolldatlon Act of the 
dtr of New Tork (L. 1882, ch. 410), defining the offenM of dis- 
orderly conduct tending to a breach of the peace and making It an 
oflenoe cogniiable by the police Jnatlcea and their ancceaiors, tho 
cll7 maglitratea, were continued by the Qreater New York charter 
<L. 18&T, ch. 378), and althon^ the aectlona of the latter statute 
providing for punishment of the oOense have been repealed by the 
Inferior Criminal Courts Act of the city of New Tork (L. 1910, ch. 
CSS), which last statute contained identical proTlalons for the 
punishment of the same offense, the prorlslona of the Consolida- 
tion Act have not been thereby repealed, but It appears to have 
been the I^lslative Intention that said proTlsions should be 
combined with those of the Inferior Criminal Courts Act which 
prescribes the punlsbment and tbat the offense should continue 
and should be triable by a city radstrate. 

(8.) Same — DiscBunivaTioH Aoaiust CnrAin Locautdb. 

Where a certain act may cause greater damage, mischief and ln> 
convenience In cities than In vIllagaB of the State, it la no viola- 
tion of the Constitution nor of the principles of sound legislation 
to make a distinction. 

(S.) Sahz — Omno Discmron to Haoibtsates as to Sehterce. 

A statate prescribing a flat sentence ot a given term for a cer- 
tain offense Is not rendered obnoxious to the itrovIsIonB of the 
Fourteenth Amendment to the Federal Constitution because It 
provides also that the magistrate may commit a person convicted 
to the workbouM or eonnty lall tor a deflnlte period not to exceed 
wix months. 



A penal statute !■ not nnconatltntlonal becaoBe It provldea that 
a party may be triad and convicted before a magistrate of minor 
offenaea to which la annexed Infamona siuil>hment. 

(S.) JuvoB— DmqOAUiTOATioM to Sit or Case. 

The fact that defendant who was represented by coniuel and 
clearly proven gulltr after a fftir trial was known to the ntaglatrate 
who had sat In trial of him on prerlons occaalons was not a 
ground lor a rerenal of the Judgment of conviction, aa such tact 
did not dlsQuaUtr the maglitratea from hearing the case. 

Appeal from a judgment rendered bj a magistrate. 

Wahle & Kringel (Charles Q. F. WahU. of counsel), for 

Charles S. Whitman, district attorney {Robert C. Taylor, of 
counsel), for respondent. 

'Malohb, J.: 

This case is brought here on appeal from a judgment ren- 
dered bj a magistrate, at the third district City Magistrates' 
Court, on the 15th day of October, 1910. From the return 
it appears that William J. Enrigbt, of the detective bureau 
of the police department of the city of New York, charged the 
defendant with jostling against pedestrians and slapping his 
hands on the person of Samuel Qordon, who, with a niunber 
of other persons, was standing alongside of a pushcart in 
Orchard street, in the borough of Manhattan, city of New 
York. After trial, in which the defendant was represented by 
counsel, judgment was rendered by the magistrate that the 
defendant committed an act which tended to a breach of the 
peace, as defined under section 1468 of the Consolidation Act 
of the city of New York (Laws of 1682, chap. 410). He was 



tbereapon committed to the workhouse for a period of aix 
months, as provided bj section 88, subdirisioQ 2, of chapter 
669 of the Laws of 1910. It is argued that the judgmeat 
should be reversed, because : 

First. Since the enactment of the Inferior Criminal Courts 
Act of the city of New York, the offense theretofore known as 
" disorderly conduct tending to a breach of the peace " has not 
been continued in such manner as to vest the city magistrates 
with power to convict for such offenses. 

Second. The sentence of the defendant is indefinite, because 
it does not appear whether he was sentenced under subdivision 
1 or 2 of section 88 of the Inferior Criminal Courts Ajot of 
the city of New York. 

ThiTd, If sentenced under subdivision 2 of section 88 of the 
Inferior Criminal Courts Act, such sentence is inoperative, 
because the punishment provided under subdivisions 1 and 2 
contravenes the Fourteenth Amendment of the Constitution of 
the United States. 

Fourth, Glenerally for errors committed upon the trial. 

ifuch learning and research have been displayed by counsel 
for the appellant on the points urged for a reversal of this 
judgment; much wider range, perhaps, has been taken than 
the cause requires. Most of the questions depend, I think, 
upon a fair and reasonable construction of the statutes relating 
to " disorderly conduct tending to a breach of the peace." The 
points argued for a reversal of the judgment for errors com- 
mitted on the trial I regard as neither substantial nor tenable. 
The magistrate saw and heard the witnesses. The proof was 
satisfactory to him that the defendant placed his hands on the 
person of Samuel Gordon and that he was seen to stretch one 
of his hands iu the direction of his pocket. The magistrate, 
therefor^ was justified in inferring that bis intention was to 
pick a pocket, and in finding that the act was one which tended 
to a breach of the peace. 



I do not think from an ezaminatioa of the record that the 
ma^strato was disqualified from hearing the case. It appears 
that he knew the defendant and had sat in trial of him on pre- 
vious occasions. Nevertheless, the defendant was represented 
hy coonsel. He and all witnesses were accorded a ftill, patient 
and legal hearing. There was no intimation, so far as is dis- 
closed, that the magistrate had ever before seen the defendant 
nntil all of the evidence had been adduced and the defendant's 
guilt clearly proven. To teat the validity of this assignment of 
error let us assume a case. Snppose there was a large town in 
one of the rural districts of the State where there was only one 
justice of the peace. Upon the theory of the appellant all that 
a person would have to do would be to be convicted once and 
then there would be no possibility of his ever being tried again. 
The law, I apprehend, is not open to such an imputation, es- 
pecially where there is no interest, prejudice or bias shown 
on the part of the trial magistrate. No such objection was 
taken to the proceedings herein by the defendant's counsel, and 
this court is botmd to sustain the judgment of conviction be- 
cause of the quantity and quality of the proof unless a reversal 
may be predicated upon other assignments allied in support 
of this appeal. If section 1458 of the Consolidation Act has 
been repealed by the Laws of 1910, chapter 659, or if the sen* 
tence imposed be void because it is ambiguous, or if it be in 
contravention of the Constitution of the United States, the 
judgment of conviction must be reversed. 

It is argued that under the Inferior Criminal Courts Act 
of the city of New York (Laws of 1910, chap. 659) the oflEense 
of " disorderly conduct tending to a breach of the peace " 
is not one of which a person may be tried or convicted in the 
migistrates' courts. 

Prior to January 1, 1898, the ci^ of New York was gov- 
erned by its ancient charters and the laws of the State of 
New York. Under sections 1458 to 1463 of the Consolidaticm 



Act "diaorderly conduct tending to a breach of the peace" 
became a puniBhable minor offense. In no other locality of the 
State of New York was there such an offense. The Legisla* 
tar^ however, having regard to the conditions exiating in New 
York city, made it an offense cognizable by the jorisdiction of 
the police jostices and their sacceasors, the city magistratea. 
The reason is obvioos. The same act mig^t cause greater 
damage, mischief and inconvenience in some subdivisions of 
the State than in others. This is a matter of fact which may 
be ascertained by the Legislature, and whenever it shall appear 
that an act from any circumstance is more mischievous and 
dangerous when committed in cities than when committed in 
villages of the State, it is no violation of the Constitution nor 
of the principles of sound l^slation to make a distinction. 

Under the Greater New York charter (Laws of 1897, chap. 
378, as amended) section 1466 of the Consolidation Act was 
continued in operation, and the offense of " disorderly conduct 
tending to a breach of the peace " extended within the limits 
of the greater city of New York as consolidated. People ex reL 
Clark V. Keeper, etc., 176 N. Y. 465; People ex rel. Smith v. 
Van De Carr, 86 App. Div. 9 ; People ex rel. Frank v. Davis, 
80 id. 448. Under sections 707, 707a, 708, 710 and 711 of 
the Qreater New York charter provieion was made for the pun- 
ishment of the offense jnst as is made in the Inferior Criminal 
Courts Act in sections 88, 90, 91 and 92. The sections of the 
charter, however, did not define the meaning of the offense 
" disorderly conduct tending to a breach of the peace ; " neither 
do sections 88, 90, 91 and 92 of the Inferior Criminal Courts 
Act. Under section 120 of the Inferior Criminal Courts Act 
sections 707, 707a, 708, 710 and 711 of the Greater New York 
charter were expressly repealed. It is, therefore, argued that 
the enactment of the new law eliminated the operation of sec- 
tion 1468 of the Consolidation Act; in other words, that under 
its provisions there is no such offense as that of " disorderly 



conduct tending to a breach of the peace " in the city of New 
York, and conaeqnently no jurisdiction in the magistrate to 
try and convict the defendant under the complaint. 

Upon the coming into existence of Greater New York this 
question arose in the Appellate Division of the first and second 
departments. It was held that sections 1458 and 1469 of the 
Consolidation Act were continued under sections 1608 and 
1610 of the charter; that otherwise sections 707 to 712 of 
the charter, providing a new system of comnlative punish- 
ment for disorderly conduct, would be utterly meaningless 
upon any theory that the Consolidation Act sections had been 
repealed. People ex ret. Smith v. Van De Carr, supra; People 
ex rel. Frank v. Davis, 8iipra. It is not pretended that section 
659 of the Iaws of 1910 expressly repealed section 1458 of the 
Consolidation Act. Assuredly the provisions of section 88 
of the Inferior Criminal Courts Act are without meaning if 
section 1458 of the Consolidation Act was repealed. 

Laws are prestuned to be passed with deliberation, and 
with a fnll knowledge of all existing statutes on the same sub- 
ject It is, therefore, reasonable to conclude that the L^;isla- 
ture, in passing a statute, did not intend to interfere with or 
abrogate a former law to which it expressly referred, and 
which is necessary to give vitality to it The intention of the 
Legislature to combine section 1468 of the Consolidation Act 
with the provisions of the Inferior Criminal Courts Act is 
obvious, because in section 79 of the Inferior Criminal Courts 
Act there is an express reference to it. The Legislature may 
regulate a power granted by a previous statute not inconsistent 
with it. liepeals by implication are not favored in law, unless 
the repugnancy between the two is irreconcilable. The new 
law does not take away any right nor grant any substantially 
new power. 

Under well-settled principles of construction both of these 
Btatntes should be harmonized, if possible, with what is reason- 



ftble and conTenient. There is certainly much room for both to 
operate without conflict. They are aiixiliary statutes, each a 
complement of the other, and designed to guard and secure a 
goTemmental purpose, not to impair or destroy it. The rule 
sought by the appellant would lead to intolerable confusion, 
and expose the city to lack of necessary protection from con- 
stantly recurring offenses which must be determined sum- 
marily by the magistrates of the city ex neeeaaitate ret. I am 
of the opinion that the reasoning in People ex rel. Frank v. 
Davie, supra, and People ex rel. Smith v. Van De Carr, supra, 
applies with equal cogency to the case at bar; that section 1458 
of the Consolidation Act is incorporated into the Inferior 
Criminal Courts Act just as it was construed to be incorporated 
into the charter of Greater New York All that the provisions 
of sections 88, 90, 91 and 92 of the Inferior Criminal Courts 
Act did was to supersede sections 707 to 712 of the charter. By 
this interpretation, which I think is fair and reasonable, both 
acts may be enforced and made to operate in harmony and 
without absurdity. 

It is assigned that the sentence is void because it is said to 
be uncertain as to whether it was imposed under subdivision 
1 or 2 of section 88 of the Inferior Criminal Courts Act. The 
answer is that the sentence was for a term of six months flat, 
and the return is that it was explicitly inflicted under sub- 
division 2 of section 88. Was the sentence, then, in contraven- 
tion of the Fourteenth Amendment to the Constitution of the 
United States? The equal protection of the laws as used in 
the Fourteenth Amendment to the Constitution of the United 
States means equal security under them to every one under 
similar terms in his life, liberty, property and pursuit of 
happiness. It purposes to exclude everything that is unequal, 
arbitrary and unfair respecting the rights of citizens. Even 
a convict has all the rights of a citizen except as they are lim- 
ited by the law and the proceedings for the proper execution of 



the law. In Barbifli t. CramoUy, IIS U. 8. 27, at p. 83^ Field, 
J., said: 

"Clasa I^pdatioD, discruninatiiig against some and favor- 
ing others, is prohibited, but I^ialation which, in carrTing oat 
a public pnrpoee, ia limited in its application, if within the 
sphere of its operation it affects alike all persona aintilarlj situ- 
ated, is not within the amendm^it 

" In the execution of admitted powers tmnecessaiy proceed- 
ings are often required which are combersome, dilatory and 
expeDsire; yet, if no discrimination against any one be made 
and no substantial right be impaired by tbem, they are not ob- 
noxious to any circumstantial objection. The inconveniences 
arising in the administration of the laws from this cause are 
matters oitirely for the consideration of the State ; they can be 
remedied only by the State." 

It is an established canon of interpretation that every statute 
18 presumed to be constitutional and every intendment is in 
favor of validity. When a statute is challenged as in conflict 
with the fundamental law a clear and substantial variance most 
be found to exist to justify its condemnation. 

The act out of which this question has been raised I confess 
is fmitful of l^al points. It is to be regretted that in framing 
laws care is not always taken to write them with such precision 
and fullness that every expression shall, like rays of light, 
carry clearness and conviction to the mind of the reader. Here- 
tofore the punishment of " disorderly conduct tending to a 
breach of the peace," as provided for by the Consolidation Act 
and by the charter, was threefold : First. A fine not exceeding 
ten dollars ; Second, Cconmitment to tbe workhouse for a term of 
six months; Third. C(»nmitment for a term of six moDths in 
default of a peace bond. People ex rel. Beynolds ▼. Warden, 
44 Hisc. Bep. 149. These forms of ptmisbment have been held 
to be constitutional in People ex rel. Abrams v. Tox, 77 App. 
BiT. 246. The defendant had been tried and convicted I7 one 



at the city magistrates on the charge of heing a vagrant. He 
was sentenced to the workhonse pursuant to provisions of sec- 
tions 707 to 710, inclusive and section 712 of the Greater New 
York charter " for a term of six months unless sooner dis- 
charged bj dne coarse of law." It was ntgoi npon appeal 
that the term of the imprisonmrat was unconstitutional and 
void. At page 250, tupra, Langhlin, J., said: " There can be 
00 question bat that it was competent for the Legislature to 
prescribe a flat sentence of six months for such offenses, bnt the 
statute indicates that it was the intention of the Lagislatnre to 
have the prisoner, after being thus sentenced, discharged at 
an earlier period, provided the committing magistrate approved 
thereof, the date of such discharge depending on the question 
as to whethra he had been previously c(mvicted of any of the 
offenses specified within the period mentioned and how often. 
The Legialatore has emphasized its approval of this system 
of punishment, and has, in effect, declared that in its wisdom 
it is impracticaUe to determine the facts with reference to the 
previous conviction at the time of imposing sentence. « * * 
No substantial right of the prisoner is invaded. The Legiala- 
ture might have omitted any or all of them. The judicial 
functions are folly left to the court. The trial, oonvictitm and 
sentence are unquestionably I^al." 

Section S8 of chapter 659 of the Laws of 1910, while re- 
enacting the three different forms of punishment heretofore 
mentioned, adds another under subdivision 2 of the act, namely 
" the magistrate may impoee a penalty as follows : " 

" Commit the person so convicted in the borough of Man- 
hattan, Brooklyn and the Bronx to the worichonse and in the 
other boroughs to the county jailB therein for a definite period 
not to exceed six months." 

The l^islation with reference to the minor offense of " dis- 
orderly conduct tending to a breach of the peace " has bem 
progressive in order to meet the changed conditions and grow 



jog population in the city of New York. I am satisfied that 
it is both the ri^t and doty of the LegisUtore, in its care of 
the general peace and safety of the city, to extend the operation 
and system of pnnishment, so that it shall become effective in 
deterring and discouraging criminal proclivities. This is not 
extraordinary legislation. On its principle has been justified 
a multitude of special acts r^nlating municipal affairs in the 
city of New York, and subdivision 3 of soctiim 88, mpra, was 
enacted to meet audi a situation as is raised in this record. 
Where the criminal history <rf a defendant is ascertained by a 
city magistrate on the trial, or when a defendant has been pre- 
viously arraigned and convicted of similar offenses by the trial 
mag^trate, bringing his criminal record within his own inde- 
pendent knowledge, power is conferred by subdivision 2, supra, 
to fix the punishment for any period not exceeding six months. 

In construing the amendment we must consider its design 
and practical tendency, its reasonableness and necessity. A 
law is not to be pronounced unwise nor condemned as unreas- 
onable because it may occasion some evil. All general laws are 
liable to this objection, yet without general laws society could 
not be governed. Whenever a law is fonnd to be a dead letter, 
or productive of little or no good, or to cause much evil, it 
well deserves the attention of its makers. Until it is repealed 
it is binding upon its subjects. 

Entertaining this opinion of the object and necessity of sub- 
division 2, supra, the court would fail in its duty to the public 
did it not say that it deemed it to be a wise and prudent addi- 
tion to the law. To the objection tm constitutional grounds 
that the defendant may be subjected under this power to an 
isfamoos punishment for six months it is sufficient to observe 
that the proceedings before the magistrate la this case are 
agreeable to the practice in such cases. A par^ may be tried 
and convicted before a magistrate of minor offenses to which is 
annexed infamous punishment He is entitled to an appeal 



to this court, which may afiSnu or reverse the jodgment for 
error. It may modify the sentence imposed by the magistrate 
if it appears for any reason to be trnjoBt or excessive. Code 
Crim. Pro., § 764. A defendant's constitutional privilege is 
thos eecnred to him. If on conviction he does not appeal it is 
a voluntary waiver of his privilege and an acquiescence in the 
judgment. An appeal was granted in this cas^ and the merits 
of the conviction have been deliberately revised. I do not per- 
ceive that the defendant has been deprived of any rights secured 
to bim by the Constitution. The offense was established clearly 
and the punishment for its commission does not seem to be 
excessive. The magistrate might have held him to await the 
action of the grand jtU7 for the crime of attempted grand lar- 
ceny in the second d^ree, the imtTiimint ponishment for which 
is two years and sis months in State prison. 

Omission to dwell upon the various minor arguments urged 
by the learned counsel for the appellant must not be taken as 
evidence that they have not been considered. All of the points 
have been carefully examined. 

No substantial ground appearing upon which this conviction 
should be disturbed, it follows from the views expressed that 
the judgment must be affinned. 

Judgment affirmed. 




Xftjr u. 1011. 

(L) Cmawu. LnB. Bmoaon 1S40 Pkkal Llv. 

BrUsnoe nrtewad, sad dvftttduit h«U thareon (or tb» Oruia 


PrtTllecs dOM not psrmlt » pmon to fo borond tha Umlts ot 
(kJr MDd bonwt erltlclm. vhlcb mut be wnbaerTleBt to th* public 
Intarwt uid good, and wlthont «t11 or puIIm. 

Edward A. Alexander, E$q., for the Faople. 

Edwin B. Leavitt, Esq., for the Defendant 

FbkschIj Cit; Magistrate : 

The information filed with this Court, and apon which a 
Bnnunons was issned, charges the defradant, Baul Fere^ with 
a criminal libel, defined by onr penal laws (§ 1340) as " a 
malicious publication, by writing, printing, pietnr^ effigy^ 
sign or otherwise than by speech, which expoeea any living per- 
son * * * to hatred, contempt, ridicnle, or obloquy, or 
which causes, or tends to cause ai^ person to be shunned or 
avoided, or which has a tendem^ to injure any perstai * • • 
in his bnsiness or occupation. 

The basis of the complaint is a certain letter, People's Ex- 
hibit 1, in the Spanish language, composed, written and pab> 
lisbed aa Eebmary 12th, 1911, in the City, Comity and State 
of New York, l^ the defendant, of and concerning the com- 
plainant, formerly a Consul-General of the Bepnblio of Colom- 



bia at the City of New York, & Secretary of the Lection in 
England and in Prance, and Qow a " Special agent " or com- 
missioner," commissioned by his government throu^ the lata 
President of Colombia, General Beyes, to come to these United 
States, and to study the Police and Fire Departments of the 
City of New York. The portion of the alleged defamatory 
letter of which comphtint is made reads, in part, as follows; 
taking, as I io, the defendant's translation of it : 

" The other adviser of Consnl-Oeneral Castillo does not lag 
behind the former. He is the illnatrions and renowned Secret 
Police Agent, Mr. Ednardo de Espinosa Guzman, skillful 
artist in detecting the movements, gestures and attitudes of 
dissatisfied parties with any constituted and solvent regime. 
Mr. Espinosa was sent by the brainy General Keyes, of most 
pleasing and everlasting memory, to perfect himself in the 
detective art, here in Yankeeland ; but since the time when hia 
eminent Chieftain had some sort of mishaps, and retired to full 
enjoyment of his well-acquired wealth, setting aside the burdens 
of public weal, the faithful follower of the tmparalleled man, 
Mr. Espinosa, has devoted his time to advise Consids, and to 
act as smart agent for commercial companies of immense no- 
toriety, of such notoriety that the Government here, being a 
grateful one, decides to provide for Mr. Espinosa's principals, 
the oflScera of said companies, cool places where they would 
undergo no damage through the action of the scorching solar 
rays, or that of the icy wintry blasts. All this at the expense 
of the government." 

The authorship of this letter is admittetd by the defendant. 
And in respect of its publication, it has been proved that the 
defendant permitted said letter to be read by various persons in 
this City before it was mailed to and received by Sig. Bafaelo 
del Castillo, the acting Consul General of Columbia, in New 
York City. 

The defendant testified that be made ten copies of the orig- 



infll wbieh wsa Bcnt bj him to the Uinister Plenipotentiaiy of 
the Republic of Colombia, 'Fmuxeco de P. Borda, at Wash- 
ington, D. C, and that the two aets of five each " were mailed 
to difiFerent officials of the Colombian Govermnent." 

The writing of the said letter, defendant claims, was 
prompted hy a sense of civic dot; and patriotism and because, 
as the defendant testified, " I wanted the Colombian Consulate 
investigated, and the connection of Mr. Espinosa with the 
Consulate, and his acting in going around and selling stock, 
or being instmmental in aeUing stock of certain companies, 
would strengthen my case with the Colombian QoTemment" 
His reason for wanting the Colombian Consulate investigated, 
as be sajs, was becanae he " considered that it is not properly 
handled." It is, indeed, a potent and significant circumstance 
that the defendant shonld make these declarations respecting 
the Consulate of his coantry in the face of the atttitnde of the 
incumbent of that office, who, it seern^ disputed a claim of 
$7500. for legal services alleged to have been rendered by one 
Mr. Qeorge B. Holhert in the transfer of the Bogotesian Bail- 
road Company to the Uonicipality of Colombia, and for whom 
the said defendant rendered services as translator, and other 
" professional services in arranging the papers necessary for. 
the transfer ; for all of which Holbert has promised to pay as 
soon as the Kepublic of Colombia pays his claim for profes- 
aitmal services." 

On cross-examination the defendant was asked this question : 
Q. " In this letter, the original of which is in evidence. Peo- 
ple's Exhibit Ko. 1, you speak of General Espinosa as having 
devoted himself to be the very active agent of commercial 
companies of immense notoriety, of such notoriety that the 
government of this country had the gratitude to decide to put 
the principals of Mr. Eapinoea the dignitaries of said com- 
panies in fresh places where the piercing rays of the sun or the 
irigid winter breezes might not cause them any damage; all 



of this at the expense of the goTemment When you wrote this 
letter, to what companiee of immense notoriety did you refer ! 
A. " To the United Wireleae." Q. " Was 6^eral Eepinosa 
an agent of the United Wireless Company " ! A. " I don't 
know whether he was agent, or whether he had heen appointed. 
I never saw his credentials. I was aaying that on information." 
Q. " What other companies of immense notoriety did you re- 
fer to when you wrote this letter i " A. " No other." 
Q. " You only had information that he was the agent of a 
single company ; is that correct V A. " Agent ! I said I 
didn't know whether he was an agent or not." Q. " From 
whom did you ohtain that information i " A. " From Hr. 
Borda." Q. "What did Mr. Borda say in reference to that 
subject t " A. " Mr. Borda said that he had bought stock in 
the company, and that Mr. Espinosa was instrumental in bring- 
ing him around and aaying to him that this company was a 
very good one, and that he should take stock of in it ; and had 
taken him to the place where they were selling it, and had 
shown him their apparatus, and had insisted on his bnying it." 

Defendant further testified that this was all the informa- 
tion he had on the subject of Espinosa being the " active agent 
of commercial companies of immense notoriety," and that he 
wrote the very information that Mr. Borda had given him 
back to Mr. Borda, for the purposes to which I have already 
allnded. When questioned whether he had ever taken any steps 
to investigate whether or not the information was true or un- 
true, the defendant replied : " I did not." 

Again in the defendant's testimony he admits that he meant 
that the United States Government decided to put the officials 
of the United Wireless in jail for having committed a crime or 
crimes, and that this particular phase of the latter had been 
taken by the defendant from some of the New York newspapers. 

There is much material in the cross-examination of the de- 
fendant which, in my opinion, lends force to the contention of 



complainaat'e counsel that the defendant's writing ahows mal- 
ice. I am of the opinion that the contents of People's Ex- 
hibit No. 1, being the letter admittedly written and published 
hy the defendant of and concerning the complaining witness in 
the case at bar is and conatitutea a criminal libel aa soch crime 
is defined in our consolidated laws. 

The document upon which the crime is predicated taken in 
its entirety, can lead to but (me conclusion, that the defendant 
intended to and did subject the complainant to hatred, con- 
tempt and ridicnle ; and that the context of said letter tended 
to injure complainant and to canse him to be shunned and 
avoided in hie business and occupation. 

A review of the evidence makes it perfectly clear to my mind 
that when the defendant wrote the above quoted portion of the 
said letter he intended to convey to the minds of those who 
read the communication that Mr. Espinosa was the " active 
agent " of certain companies and company ofBcials who have 
been guilty of such an offense aa to subject them to imprison- 
ment, and that the Government had decided to put the princi- 
pals of Mr. Espinosa, to wit: the said officials in fresh places 
where neither the light of day nor the chill of the winter could 
penetrate, meaning thereby that the said United States Gov- 
ernment anthoritiea had actually imprisoned the officials of 
the company to which the defendant refers in his testimony. 
The author of said letter by its terms couples the complaining 
witness with the men and principals of the United Wireless 
Company as criminals, and his form of language tends to char- 
acterize Mr. Espinoaa as their agent and advocate in (heir crim* 
inal practices. The charge that the complainant associates 
with persons who indulge in criminal practices must by impli- 
cation, if not in expressed words, hold him out as having knowl- 
edge of the character of such associates. The nature of the 
society is referred to, and the relation of the parties disdoeed. 

The question of good faith, the truth of the statement, and 



the existence of actual malice ia for the jxaej. (Brooks v. Har- 
rison, 91 N. Y. 89; Hamilton v. Eno, 81 N, T. 116.) 

The Court in the Hamilton case, aapra, at page 132 says: 
" We do not perceive that the rule should differ in this respect, 
when one of the parties wss a pnhlic officer, and the charge was 
made against faim as snch." 

The defendant pleads qualified priTilege as a defense. Priv- 
ilege does not permit a person going beyond the limits of fair 
and honest criticism, and in snch case the criticism mast he 
flubserrient to the public interest and good, withont evil or 
malice. Honest criticism of official conduct and of persons of 
a public character is subject to qualified privil^e. It is too 
well known to need the citation of authorities " that to make a 
defense of privilege complete, good faith, an interest to be 
upheld, a statement properlj limited in its scope, a proper oe- 
casion, and pnblication to proper persons, must all appear." 
(Walker v. Best, 107 App. Div. 304.) The Court is to judge 
whether the occasion was such that the communication waa 
privileged ; but, it seems, the jury is still to find whether the 
occasion has been abused or misused. 

Chief Justice Folger, writing for the Court of Appeals, in 
the Hamilton case (supra) said: 

" We are of the opinion that the official act of a public fnno- 
tionary m&j be freelj criticized, and entire freedom of expres- 
sion used in ai^oment, sarcasm and ridicule upon the act itself; 
and that then the occasion will excnse everything but actual 
malice and evil purpose in tfae critic. We are of the opinion 
that the occasion will not of itself excuse an aspersive attat^ 
upon the character and motive of the officer; and that to be 
ezcnsed the critic must show the truth of what he has uttered 
of that kind." 

The evidence adduced does not disclose that the complainant, 
Mr. Espinoaa, was at the time of the attack upon him an at- 
tacb^ of or in any way connected with the Col(nnbian Consu- 



Ute tliat the defendint statea be son^t to bare investigated. 
His miasion was in no vise related to the Consolate ; fortbeiv 
more, his appointmeiit did not have its origin there. It seems 
to me that the defendant exceeded his privil^e in the com- 
monication in question when he, seeking to correct abases wbicb 
be claimed existed in a public office, attacked an iadividnal 
foreign to the office and its powers, and made known the con> 
tents of the said letter, as defendant's counsel admits in his 
brief, by " showing the document to bis Colombian friends " 
who, be adds, " bad a perfect right to see it" 

The letter People's Exhibit No. 1, is, in mj opinion, defama- 
tory and violates the statutes in ancb cases made and provided. 

The People having anstained the burden of proof by present- 
ing evidence of a prima facie character, I must bold the de- 
fendant apon proper papers, to await the action of the Grand 
Jury, and in default of five bondred dollars he will stand com- 
mitted to the City Prison. 



Mmj S4, 1011. 


Imnonanr— Monos 10 DiaioM. 

Am Indictment will not be dtomtnad on alBdftTlti of WttnanM 
a» to vbat titer teatlBed to before the Orand Jnrr- 

Motion to diamiss Indictment 

Jamea 0. Sebring and W. 8. McOreevy for motion ; 

E. C. Smith, Bistrict Attorney and W. H. Nichols, opposed. 

BmsEiJ., J. 

The Def^idant was Indicted on Jannaiy 5, 1911, on a charge 
of Bape in the second degree. Was subseqaeDtly arraigned 
and entered a plea of not guiltj. The Case was sent to this 
Court for trial and at the Febmaty Term following a motion 
was made to inspect the Grand Jury Minutes, which motion waa 
denied. The Case has been set for trial at the present term of 
this Court, and a motion ia now made to diamiss the Indict- 
ment under Section 312 of the Code of Criminal Procedure on 
the ground that the Constitutional rights of the Defendant bad 
been invaded bj the reception before the Grand Jury of illegal 
and incompetent evidenct,— 

The affidavits read to support this motion allege talks with 
several of the witnesses who were sworn before the Grand Jury 
as to what they claim to have testified to before the Grand J1117 
and that in the opinion of the afSant such evidence if received 
by the Grand Jury waa incompetent and would not tend to 
corroborate the testimony of the Prosecutrix as to the commia- 



non of tlie crime charged, and that the; beHeve that the Indict- 
ment was fonnd npon innifficiait, incompetent and illegal evi- 

The affidarita on information and belief are very imsati»> 
factory bo &r as pronng what evidence waa actuallj received 
by the Grand Jury. Statements of Witneaaee as to what they 
have testified to before Grand Juries or did not testify to is 
very onsatiafaetory as proving what actually took place. Some- 
times witnesses, will make statements as to what they testified 
to or did not testify to, to interested parties. Which are not in 
harmony with the actual testimony given ; and such statements 
cannot always be relied apon to state the exact facts. 

The affidavits are answered by the District Attorney who in 
hia affidavit states, that there was an abundance of evidence 
presented to the Grand Jury in his judgment to support the 
Indictment He states positively that the Prosecatriz waa 
amply corroborated by statments and admiaaiona made by the 
defendant that he had had semal intercourse with this yonng 
lady, the Proeecntriji, — and of the promise of the Defendant 
to many her and he states that the evidence before the Grand 
Jury by several witnesses that the Def^dant acknowledged 
that he had illicit intercourse with this yonng la^ at or about 
the date mentioned in the Indictment 

It seems to mo that these affidavita show that this Indictment 
waa fonnd on competent and ample evidence and there is no 
evidence before me that if any incompetent evidence waa re- 
ceived that it in anywiae influenced the Grand Jury in finding 
the Indictment 

See. 258 of the Code of Criminal Procedure requires the 
Grand Jury to find an Indictment when all of the evidence 
before them, taken together, is such as in their judgment 
would, if unexplained or nnoontradicted warrant a conviction 
by the trial jory. 

As the case stands before me I faU to see how any of the 



Constitational rights of the Defendant have been invaded, and 
the Indictment seems to have been found on sufficient and 
ample evidence. 

And this motion to dismiss tbe Indictment must be denied. 

Ordered accordingly. 




(8m pace SBO, thli Tolanw.) 


"Medical attendanoe " deflned u meanlBS attandanoe hr a penon 
who under chapter Sll, Lam of 1S80, la a recnlarly licensed phTalclan. 
and doea not Include tliat of a larman who tiecanae of hla reUsloiH 
belief that prayer for dfTlne aid was the proper remedr for atckaeaa, 
nesleets to fnmlah proper medical attendance to hla minor adopted 
child who la danceroiuljr IIL Pw>pte T. Pleraon, 176 N. T. 201. 

Practlclns medicine wlthfn the meanlnc of section 1E3 of the Pnb- 
lle Health law, profalhlting toch practice without lawful rwlstratlon. 
doea not conaUt In merely admlnlaterlng drosi or the uae of aurglcal 
Inatrumeiita, bat the term Inclndca broadly the maUns of dlagnoals 
and other reoosnlaed practice of phyalclana. People r. AUcutt 117 
App. DiT. G4S. 

The Court will not apply any hard and taat rale In determining what 
acta Gonatltute practice of medicine without authority and redatraUon. 
contrary to the statute. People t. Christian, la App. DIt. B41. 

One who fOr a campensatio& treated persons for physical allmenta 
•olely by laylnc on of hands and manipulation, but without gtrlnB med- 
icine or performlDK snrslcal operations, practiced medicine within 
the meantnc of the statute snd la gnllty of a mlademeanor U he did 
ao without a Ucanae. People a. Mnltord, 140 App. DIt. 716. 


In Illlnola, by statutory enactment, those who treat the sick by spirit' 
nal or mental means wlthont the employment of dnm or material 
remedy are eapedally exempted. III. Laws 1889, pace I7G. 

A Christian Sdentlat may practice the heallns act aooordlns to that 
method, on obtaining a oertUcate of food moral character pursuant 
to the regnlrementa of the rerlsed statntea. Wheeler t. Sawyer, IS 
AtL (Maine) 87. 

A Christian Belentlat. beUerlnc that disease la an Ulntioa of the 



mind and not ■ reAlltr, and teaching the alck, this theoiT of dlaeaM, 
held not to be a phyBlclan within the meanlnc ot the Hlaaonri Statat«, 
Eansaa City t. Balrd, 92 Mo. App. 204. 

One who treat! diseases and Injuries br what Is known as the 
" Chrlatlan Science " method held to be engaged In practicing medi- 
cine within the meaning ol a statuta prorldlng that any person shall 
be regarded as practicing medicine who shall operate on, profess to 
beal, or prescribe tor or otherwise treat any physical or mental ail- 
ment of another. State t. Bnswell. 40 Nebr. 1&8. 

Under a statute prohibiting any person not having a certificate from 
the board of medical registration from prescribing, directing, or rec- 
ommended any drug, medicine, or other agency for the treatment, 
cure or relief of any bodily Infirmity, the term " other agency " does 
not Include the aystem known as " Christian Bclence." Brans t. State, 
9 Ohio S. A C. P. Dea 1!2. 

Where the meaning of the term " practicing medicine " has been so 
extended b; statutory enactment to cover all treatment of whatever 
kind or nature tor the cures or relief of mental or physical ailments 
or diseases. In such a case the giving of Christian Science treatment 
In vloIaUon of law. State v. Marble, 72 Ohio St 21 

The Christian Bclence method of healing diseases which Is based 
on the theory that all diseases, even those of a contagious character, 
are mere beliefs, and not real tacts, held to be contrary to the general 
policy of the law ot Pennsylvania relative to the existence and treat- 
ment ot diseases. In re First Cbnrch of Christ. Scientists, 20E Pa. (4$. 

Where a statute makes It unlawful to practice medicine without 
flrat obtaining a license therefor, which does not attempt to give a defi- 
nition of what constitutes "practicing medicine," held, that such 
statute mnst be construed to have relation to the practice of medlclna 
as the same Is popalarly and ordinarily understood, and does not em- 
brace the giving of treatment by one who follows the system known 
ss " Christian Sduice." State t. Hjlod, 20 B. L 832. 





AbducUon 16 

Abandonment, See DlwrdM-lr Persona. 

Abortion 22 

Accomplice 7 38, 17 

Act* of CoHXiniplnton, eTldence of 96 

AdmlBBlbllltr of Drlng Declaratlona 21 

Admleslon b7 Silence 5 

Adulteration of Hllk 8 406, 11 

Adrlce to Acquit 14 

Advlalng Grand Jnrr 18 

Afllrmance, BfTect of Unanlmona 18 

Agent, Larcen7 by 23 

Alibi 7 441, 24 

Amendment of Indictment 24 

Amusementi, See Bandar Laira. 

Anlmala, Poiaonlng 24 

Appeala 19 

Appeala, Discretion pf Court of. In Capital Cases 8 

Arrar, Cballenge to 13 

Arrest of Judgment, Motion In 14 

Arrest wltbout Warrant 11 

Arson 24 

AssemblT. Unlawful 8 

Attempts, Traps and 19 

Attorney and Client, See Privileged Communications, At- 

tomers. Disbarment of 24 


Betting and Oamlng. See Gambling. 




See *1m OambUnc. 




See «lM Oambllng. 

CftpIUl CaMC, CoqumI Awlsned in 16 

See alio Dlacretlon of Court of Appekte In CaplUl Cbhb. 

Cemeteries, Deaeeratlon of 24 

Certlflcate for Star A 22. 12 

CIiBllenxe to Amr 13 

to Jnron 9 

Chance of Tenne E 

Charxlnc Jury 18 

Check, Larcenr br 2G 

See alao Fatae Pretences. 

Children In Tbeatrea 19 

u Witneaeee 19 

See also Minors. 

ChriiUaD Sclentlats, Practice of Medicine bj 95 

See alu Practicing of Medicine. 
Bee C<>«onflplratorB, poet. 

Co-conaplratoiB Acta of, erldenoe uto 25 

Bee Coniplrac7. 

Comment on Omlnlon of Defendant to Testlfr 11 

Commercial Paper, See Larceny by Check. 

Communications, PrlTlleged 11 

Same, of Phyalclana 26 

Compensation of Connsel 19 

Competency of Jnrors 13 

Confessions 22 

Conatltntlonatlty of Oleomsrserlne Law 3 10, S 

Contempt 8 

Continuance 14 

ConTlctlon for Leaser Offence 6 

Corporations, Criminal Liability of 24 

NegUsence of empkiyees of 1 

Corpus DeUcU 12 824. 2S 



ComboraUoD of AooompUc* E 216, 7 180. 9 109, 11 

8«e also Accomplice In Rape Ca>e« 24 

under nc. 23, Penal Cod« 19 

Connael AMlgned In Capital Caiec 16 

Compenutlon ol IB 

Improper Remarka of 13 

See alw. Trial, limitation on. In Snaunlng 
np on; Openi&s Com on. 

Court Coercins Jnry 21 

Powera of 8 169, 81 

Remarka ol U 

Bee alao Charglns Jurj, Comment on Omlaalon of 
Defendant to TeaUtj 

Conrt of Appeal!, Dl«cretlon ot in Capital CasM 8 

Courta-Martlal 23 

CrediWUty 18 

See alBO, EMdence. 

Crime Committed In Two Conntiei 12 

See alao Tenne, Change of 

Criminal Canaplracj 6 271 9 

Criminal Code, section 392 18 

section 899 17 

■ectloQ S4S 20 

Contempt S 

Irreaponslbili^ 9 

UaMlIty of Corporations 24 

Libel 15 419, 22 

Co-conapiraton, Acta of, Brldence ot 2B 

See also Conspiracr, Brldence. 

Deatb, Proof of 7 

See alae. Corpus DellctL 

Declarations, Dyins S 178. 12 78, 21 

Defects, Technical Error* and 11 886, 14 

Bee also. Harmless Errors. 

Defendant, Comment on Omisaton of, to Testlfr 11 

Defense, Intoxication as a 12 

Deliberation, Quarrels as Affecttng 19 

Deliberation — Premeditation G 

Desecration of Cemeteries 24 

Disbarment of Attomeya 24 



DlKretlon of Court of Appwli in CaplUl CaMS 8 

Oiwrderlr Hoomb 22 

DlMnl«rij Penma 14 

Dlitrlct Attorney, Improper Remarb of 14 

See Klao, Connael, Improper Remarb oL 

Doabt. Reuonable 12 272, 14 

D7ln« Declaratiou 5 178, U 7S. 21 

Bmploreee of Corporations, Negligence of 1 

Bmployment of Minora 2S 

Error, HarmlcM 12 

Bee also, Teclinlcal Errors and Defects. 

Errors, Teclinlca], and Defects 11 286. 14 

See also, HarmkflB Brrors. 

Evidence, Admission hj Silence as 6 

Competency of, Wbere Irregularly obtained .... 18 

Dying Declarations as 4 

As to Nature of Wound 19 

Use of PbotoKraphs as 8 

See also Acts of Co-consplrators; Admlsrion 
1>7 Silence; Dying Declarations; Murder; Nature 
of Wound; Physicians; PriTll^ed Communi- 
cations; Proof of Deatb; Pr